Tag Archives: Criminal

Under section 465 of Criminal Code plea of error should be taken at earliest stage

SC11kbROSY AND ANR. vs STATE OF KERALA AND ORS. [ 10/01/2000]

The High Court failed to notice the provisions of Section 465 of the Code as the objection with regard to such error, omission or irregularity in the committal order was required to be raised at the earliest stage. After committal order in the case, the trial was almost over as evidence of the prosecution witnesses was recorded by the sessions court, statements of the accused under Section 313 of the Code were also recorded, thereafter witnesses were recalled and examined, further statements were recorded and
only at the stage of arguments the contention with regard to the so-called irregularity was raised, which is upheld by the Sessions Court and the High Court. In the background of these facts, we hold that holding of fresh inquiry under Section 202 would be totally unnecessary in the present case and thereafter to commit the case again to the Sessions Court. Hence, the appeals are allowed, the impugned order passed by the High Court is set aside and the reference made by the Sessions Judge is answered in the afore-mentioned terms. The Sessions Court is directed to complete hearing of arguments and dispose of the case on merits in accordance with law.

While dealing with Section 465(2) of the Code in Kalpnath Rai v. State, [1997] 8 SCC 732 this Court has stated thus : “Sub-section (2) of Section 465 of the Code is not a carte blanche for Tendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that the court shall have regard to the fact ’ that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial.”

Recalling or Reviewing an Order by Criminal Court

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Magistrate and Sessions Court

 Bindesi-Iwari Prasad Singh vs Kali Singh[citations: 1977 AIR 2432, 1977 SCR (1) 125]

There is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to. review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, there- fore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact after having passed the order dated 23-11-1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction.

This being the position, all subsequent proceedings follow- ing upon recalling the said order,would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect.

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High Court

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Sentencing Policy set by Supreme Court

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Death Penalty  Law Explained by Supreme Court in Santosh Kumar Satisbhusan case

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The grand policy

Santosh Kumar Satishbhushan Bariyar vs. the State of Maharashtra (2009) 6 SCC 498, Apex Court held the nature, motive, and impact of crime, culpability, quality of evidence, socio economic circumstances, impossibility of rehabilitation and some of the factors, the Court may take into consideration while dealing with such cases.

Factors influencing punishment 

Enormity of the Crime and execution thereof (Crime Test)

Criminal Test

R-R Test

Previous Criminal Record of the Accused

Possibility of reformation

Danger to the society

Diabolic Act


Related imageNational Crime Records Bureau

Crime Statistics [1953 to 2013]

Death Penalty law In IndiaBULLET 2


    DEATH PENALTY AWARDED

In Bachan Singh, two issues came up for consideration before the Constitution Bench. The first issue related to the constitutional validity of the death penalty for murder as provided in Section 302 of the IPC and the second related to “the sentencing procedure embodied in subsection (3)of Section 354 of the Code of Criminal Procedure, 1973. in Swamy Shraddananda apex Court went so far as to note in paragraph 48 of the Report that in attempting to standardize and categorize crimes, Machhi Singh “considerably enlarged the scope for imposing death penalty” that was greatly restricted by Bachan Singh.

Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review. In other words the “balancing test” is not the correct test in deciding whether capital punishment be awarded or not.

Nathu Garam v. State of Uttar Pradesh [(1979 ) 3 SCC 366]

This Court in that case upheld the death sentence awarded by the trial Court, confirmed by the High Court, for causing death of a 14 year old girl by a person aged 28 years after luring her into the house for committing criminal assault. Judgment was delivered prior to Bachan Singh (supra), therefore, the mitigating circumstances concerning the criminal were not seen addressed. Stress was more on “crime test”.

Jumman Khan v. State of Uttar Pradesh [(1991) 1 SCC 752]
This Court, in this case, was hearing a writ petition moved by a convict, not to extend the death sentence. Writ Petition was dismissedafter referring to the order passed by this Court in S.L.P. (Criminal) No. 558 of 1986, confirming the death sentence, noticing the degree of criminality and the reprehensive and gruesome manner the crime was committed on a six year old child. “Criminal test” is not prima facie seen satisfied, but only the “crime test

Dhananjoy Chatterjee v. State of West Bengal [(1994) 2 SCC 220]
This Court dealt with a case of rape and murder of a young girl of about 18 years. The Court opined that a real and abiding concern for the dignity of human life is required to be kept in mind by courts while considering the confirmation of the sentence of death but a cold-blooded and pre-planned murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years exists in a rarest of rare cases which calls for no punishment other than capital punishment.

Laxman Naik v. State of Orissa [(1994) 3 SCC 381]
This Court again confirmed the death sentence on an accused for the offence of rape followed by murder of 7 year old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. After satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family members and others, the accused with a view to screen the evidence of the crime, put an end to the life of that innocent girl. The Court noticed how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting no punishment other than capital punishment.

Both the tests “crime test” and “criminal test”, it is seen, have been satisfied against the accused for awarding capital punishment

Kamta Tiwari v. State of M.P. [(1996) 6 SCC 250]
Apex  Court dealt with a case of rape followed by murder of a 7 year old girl. Evidence disclosed that the accused was close to the family of the father of the deceased and the deceased used to call him “uncle”. This Court noticed the closeness to the accused and the accused encouraged her to go to the grocery shop where the girl was kidnapped by him and was subjected to rape and later strangulated to death throwing the dead body in a well. Court was giving thrust on crime test rather than criminal test against the accused

Molai and another v. State of M.P. [(1999) 9 SCC 581]
A three-Judge Bench of this Court justified death sentence in a case where a 16 year old girl, preparing for her Tenth Standard Examination was raped and strangulated to death. The Court noticed the gruesome manner in which rape was committed and the way in which she was strangulated to death and the dead body was immersed in the septic tank.

The three-Judge Bench, it is seen, has applied both the tests Crime test as well as the Criminal test and found that the case falls in the category of rarest of rare cases.

Bantu v. State of Uttar Pradesh [(2008) 11 SCC 113]
This Court confirmed death sentence in a case where a minor girl of 5 years was raped and murdered. This Court, following the principles laid down in Bachan Singh, pointed out that when the victim of the murder is an innocent child or a helpless woman or old or infirm personor a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, it is a vital factor justifying award of capital punishment. In this judgment also, this Court stressed on drawing of a balance sheet of mitigating and aggravating circumstances, following the judgment in Devender Pal Singh v. Government of NCT of Delhi (2002) 5 SCC 234.

Court was applying the “balancing test”, to award capital sentence.

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra [(2008) 15 SCC 269]
This was a case where the accused, a married man having three children, was known to the family of the deceased. The Court noticed the horrendous manner in which the girl aged 9 years was done to death after ravishing her. The Court awarded capital punishment. The Court, in this case, took the view that mitigating and aggravating circumstances have to be balanced. Here also the test applied was the “balancing test” to award capital punishment.

Mohd. Mannan @ Abdul Mannan v. State of Bihar [(2011) 5 SCC 317]

This was a case where a minor girl aged 7 years was kidnapped, raped and murdered. Court noticed how the accused had won the trust of that innocent girl and the gruesome manner in which she was subjected to rape and then strangulated her to death. The accused was aged 42-43 years. The Court held that he would be a menace to society and would continue to be so and could not be reformed. The Court awarded death sentence. The Court, in this case, held that a balance sheet is to be prepared while considering the imposition of death sentence. Here also the test applied was “balancing test” to award
capital punishment.

B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3SCC 85

A case where the convict was found guilty of rape, murder and robbery. The crime was carried out in a depraved and merciless manner. Two days after the incident, the local public caught him while he was attempting to escape from a house where he made a similar attempt to roband assault a lady. There was nothing in law to show that the convict was guilty of the second offence in as much as no trial was held. There were some recoveries from his house, which indicated that the convict had committed crimes in other premises also. Again, there was nothing in law to show that he was found guilty of those crimes. On these facts, despite the guilt of the criminal not having been established in any other case, the convict was found incapable of rehabilitation and the death sentence awarded to him was confirmed.

 Rajendra Pralhadrao Wasnik v. State of Maharashtra , (2012) 4 SCC 37
This was a case of rape and murder of a 3 years old child by a married man of 31 years. Court noticed the brutal manner in which the crime was committed and the pain and agony undergone by the minor girl. The Court confirmed the death sentence awarded. The Court elaborately discussed when the aggravating and mitigating circumstances to be taken note of before awarding sentence and what are the principles to be followed, while awarding death sentence.

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CASES IN WHICH DEATH PENALTY COMMUTED

Kumudi Lal v. State of U.P. [(1994) 4 SCC 108]
It was a case where a 14 year girl was raped and killed by strangulation. The Court accepted the brutality of the crime, however commuted death penalty to life imprisonment. The Court noticed that the evidence did not indicate the girl was absolutely unwilling but rather showed that she initially permitted the accused to take some liberties with her but later expressed her unwillingness. Treating the same as a mitigating factor, death sentence was commuted to that of life imprisonment. ‘Criminal test’ was applied and was found not fully

Criminal test’ was applied and was found not fully satisfied since some mitigating circumstances were found to be in favour of the accused so as to avoid death sentence.

Raju v. State of Haryana [(2001) 9 SCC 50]
This Court commuted death sentence to life imprisonment in a case where a girl of 11 years was raped and murdered. Court noticed that the accused had no intention to murder her, but on the spur of the moment, without any premeditation, he gave two brick blows which caused the death. Further, it was also found that the accused had no previous criminal record or would be a threat to the society. ‘Criminal test’ was applied and found not fully satisfied some mitigating circumstances were found to be in favour of the accused so as to avoid death sentence.

Bantu alias Naresh Giri v. State of M.P. [(2001) 9 SCC 615]
This Court commuted death sentence to that of life imprisonment in a case where a girl of 6 years was raped and murdered by a boy of less than 22 years. Though, this Court found that the act was heinous and required to be condemned, but it could not be said to be one of the rarest of rare category. The accused did not require to be eliminated from the society. ‘Criminal test’ was applied and found some circumstances favouring the accused so as to avoid death sentence.

State of Maharashtra v. Suresh [(2000) 1 SCC 471]
This Court in that case commuted the death sentence to life imprisonment where a girl of 4 years old was raped and murdered. Though this Court felt that the case was perilously  near the region of rarest of the rare cases, but refrained from imposing extreme penalty.
“Criminal test” was applied and narrowly escaped death sentence.

Amit v. State of Maharashtra [(2003) 8 SCC 93]
This Court commuted death sentence to life imprisonment in a case where the accused aged 28 years had raped and murdered a girl of 11-12 years. This Court noticed that the accused had no previous criminal track record and also there was no evidence that he would be a danger to the society in future. “Criminal test” was applied, absence of previous track record and danger to the society were considered to avoid death sentence.

Surendra Pal Shivbalak v. State of Gujarat [(2005) 3 SCC 127]

This Court commuted death sentence to that of life imprisonment in a case where the accused aged 36 years had committed rape and murder of a minor girl. This Court noticed at the time of occurrence, the accused had no previous criminal record and held would not be a menace to the society in future. “Criminal test” was applied and absence of previous record was considered as a circumstance to avoid death sentence.

Amrit Singh v. State of Punjab [AIR 2007 SC 132]

This Court commuted death sentence to that of life imprisonment in a case, where a 7-8 years old girl was raped and murdered by the accused aged 31 years. The Court noticed the manner in which the deceased was raped, it was brutal, but held it could have been a
momentary lapse on the part of the accused, seeing a lonely girl at a secluded place and there was no pre-meditation for commission of the crime. “Criminal test” it is seen, has been applied in favour of the accused to avoid death sentence.

Rameshbhai Chandubhai Rathod v. The State of Gujarat [(2011) 2 SCC 764]
This Court commuted death sentence to life imprisonment of the accused committing rape and murder of a girl of 8 years. It was noticed that the accused at the time of the commission of crime was 27 years and possibility of reformation could not be ruled out. “Criminal test” was applied considering the age of the accused and possibility of reformation saved the accused from death penalty.

Sangeeta & Ors v. State of Haryana (2013) 2 SCC 452

“Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences – whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment, in cases such as the present is not unquestionably foreclosed. More so when, in this case, there is no evidence(contrary to the conclusion of the High Court) that Seema’s body was burnt by Sandeep from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape. There is also no evidence (again contrary to the conclusion of the High Court) that Narender was a professional killer.

Therefore, we allow these appeals to the extent that the death penalty awarded to the appellants is converted into a sentence of life imprisonment, subject to what we have said above”

“In my considered view that the tests that we have to apply, while awarding death sentence, are “crime test”, “criminal test” and the R-R Test and not “balancing test”

R-R Test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.

Shankar Kisanrao Khade  Versus State of Maharashtra[April 25, 2013]

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Consecutive sentence cases

Ronny v. State of Maharashtra, (1998) 3 SCC 625 

is also among the earliest cases in the recent past where consecutive sentences were awarded. The three accused, aged about 35 years (two of them) and 25/27 years had committed three murders and a gang rape. This Court converted the death sentence of all three to imprisonment for life since it was not possible to identify whose case would fall in the category of “rarest of rare” cases. However, after awarding a sentence of life
imprisonment, this Court directed that they would all undergo.

Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148

is perhaps among the earliest cases where consecutive sentences were awarded. This was not a case of rape and murder but one of causing a dowry death of his pregnant wife. It was held that it was not the “rarest of rare” cases “because dowry death has ceased to belong to that species of killing.” The death sentence was, therefore, not upheld. Since the accused had attempted to cause disappearance of the evidence by severing the head and cutting the body into nine pieces, thisCourt directed that he should undergo the sentence for that crime after serving out his life sentence

In Sandesh v. State of Maharashtra, (2013) 2 SCC 479

Apex Court converted the death penalty awarded to the accused to imprisonment for life, inter alia, for the rape of a pregnant lady, attempted murder and the murder of her mother in law to imprisonment for life with a further direction that all the sentences were to run consecutively

In Sanaullah Khan v. State of Bihar, MANU/SC/0165/2013

the death sentence awarded to the accused for the murder of three persons was converted by this Court to imprisonment for life for each of the three murders and further the sentences were directed to run consecutively

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Minimum fixed-term sentences

Subhash Chander v. Krishan Lal, (2001) 4 SCC 458

it was held that the convict shall remain in prison “for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions

Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC  296, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 and Ram Anup Singh v. State of Bihar, (2002) 6 SCC 686

the convict was directed to serve out at least 20 years of imprisonment

Mohd. Munna v. Union of India, (2005) 7 SCC 417

the convict had undergone 21 years of incarceration. This Court held that he was not entitled to release as a matter of course but was required to serve out his sentence till the remainder of his life subject to remissions by the appropriate authority or State Government.

Sebastian v. State of Kerala, (2010) 1 SCC 58

was a case of a 24 year old extremely violent pedophile accused of raping a two-year old child and then murdering her. While commuting the death sentence, this Court held that he should remain in jail for the rest of his life in terms of Swamy Shraddananda case

Sandeep v. State of U.P., (2012) 6 SCC 107

the death sentence awarded to the convict for the murder of his pregnant friend and  pouring acid on her head was converted to sentence of life for a minimum period of 30 years without any remission before his case could be considered for premature release.

Gurvail Singh v. State of Punjab, (2013) 2 SCC 713
death sentence was converted to imprisonment for life with the requirement that the convict spends a minimum of thirty years in jail without remission

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Guidelines for District Magistrates and Senior Superintendent of Police for cases under Juvenile Justice Care and Protection Act, 2015 and Protection of Children from Sexual offences Act 2012

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1. Understand the working of Special Juvenile Police Unit (SJPU) in your district.

2. Find out the working of the Integrated Child Protection Scheme (ICPS) in your district. Contact your District Probation Officer/ Child Protection Officer/Nodal Officer of ICPS

3. Publicize the contact numbers of the In-charge of the SJPU and ICPS at all the Police Stations in your district.

4. Find out with ICPS about the details of the Translators, Counselors and Support Persons available. Their services are needed in cases of sexual abuse of children as per the provisions under POCSO Rules.

5. Have at least one meeting with officials of :

• Integrated Child Protection Scheme (ICPS)
• District Legal Services Authority (DLSA)
• Special Juvenile Police Unit (SJPU)
• Child Welfare Committee (CWC)
• Childline
• Unicef
• District Child Protection Unit (DCPU)
• Child Protection Officer
• Medical Officers of District Hospital
• Notified NGOs
• DGC Criminal and Senior Prosecuting Officer
• Anti Human Trafficking Unit (AHTU)

6. Connect with District Legal Services Authority for providing Legal Aid to victims under POCSO Act. Home Department may  notify all 6 sections under Pocso under Victim Compensation Scheme . It has within it six categories currently. Please get your Senior Prosecution Officer and DIG Criminal to assist you in this effort.

7. If the Child is in need of Care and Protection produce the Child victims of Sexual Assault before the Child Welfare Committee.
8. Issue orders for dealing with cases of children with sensitivity.
9. Issue orders for the monitoring of cases of child rights violation by senior
officials.

10.Ensure speedy registration of FIR in cases of sexual assault of children.


Please Note:

It is a Punishable action if Police / Special Juvenile Police Unit fails to report a commission of the offence under this act [Section- 21-(1) Protection of Children from Sexual Offences Act 2012 ]

If a Police Officer fails to register a case or take cognizance of the offence under Section 326-A, Section 326-B , Section 354,Section 354—B, Section 370,Section 370-A, Section 376,Section 376A,Section 376-B, Section 376-C,Section 376-D, Section 376-E Indian Penal Code is punishable offence . [Section 166-A Indian Penal Code]  The Protection of Children from Sexual Offences Act, 2012 is a law to strengthen the legal provisions for the protection of children from sexual abuse and exploitation.


The salient features of the law are as follows:

1. The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography.

2. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court

3. An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc. Punishments for Offences covered in the Act are:

o Penetrative Sexual Assault (Section 3)on a child — Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
o Aggravated Penetrative Sexual Assault (Section 5) — Not
less than ten years which may extend to imprisonment for life,
and fine (Section 6)
o Sexual Assault (Section 7) i.e. sexual contact without
penetration — Not less than three years which may extend to
five years, and fine (Section 8)
o Aggravated Sexual Assault (Section 9) by a person in
authority — Not less than five years which may extend to seven
years, and fine (Section 10)
o Sexual Harassment of the Child (Section 11) — Three years and
fine (Section 12)
o Use of Child for Pornographic Purposes (Section 13) — Five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)

4. The Act provides for the establishment of Special Courts for trial of
offences under the Act, keeping the best interest of the child as of
paramount importance at every stage of the judicial process. The Act
incorporates child friendly procedures for reporting, recording of
evidence, investigation and trial of offences. These include:

5. Recording the statement of the child at the residence of the child
or at the place of his choice, preferably by a woman police officer
not below the rank of sub-inspector.

6. No child to be detained in the police station in the night for any
reason.

7. Police officer to not be in uniform while recording the statement of the
child.

8. The statement of the child to be recorded as spoken by the child.
9. Assistance of an interpreter or translator or an expert as per the
need of the child.

10. Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled

11. Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.

12. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

13. Frequent breaks for the child during trial. Child not to be called repeatedly to testify.
14. No aggressive questioning or character assassination of the child in-camera trial of cases.
15. The Act recognizes that the Intent to commit an offence, even
when unsuccessful for whatever reason, needs to be penalized. The
attempt to commit an offence under the Act has been made liable
for punishment for upto half the punishment prescribed for the
commission of the offence.
16. The Act also provides for punishment for abetment of the offence,
which is the same as for the commission of the offence.
17. The Act makes it mandatory to report commission of an offence
and also the recording of complaint and failure to do so would make
a person liable for punishment of imprisonment for six months or /
and with fine.
18.1t is a Punishable action if Police / Special Juvenile Police Unit fails to
report a commission of the offence under this act [Section- 2141)]

19. For the more heinous offences of Penetrative Sexual Assault,
Aggravated Penetrative Sexual Assault, Sexual Assault and
Aggravated Sexual Assault, the burden of proof is shifted to the
accused. This provision has been made keeping in view the greater
vulnerability and innocence of children.

20. To prevent misuse of the law, punishment has been provided for
making false complaint or proving false information with malicious
intent. Such punishment has been kept relatively light (six months) to
encourage reporting. If false complaint is made against a child,
punishment is higher (one year) (Section 22).

21. The media has been barred from disclosing the identity of the
child without the permission of the Special Court. The punishment for
breaching this provision by media may be from six months to one year
(Section 23).

22. For speedy trial, the Act provides for the evidence of the child to be
recorded within a period of 30 days. Also, the Special Court is to
complete the trial within a period of one year, as far as possible
(Section 35).

23. To provide for relief and rehabilitation of the child, as soon as the
complaint is made to the Special Juvenile Police Unit (SJPU) or local
police, these will make immediate arrangements to give the child, care
and protection such as admitting the child into shelter home or to the
nearest hospital within twenty-four hours of the report. The SJPU or
the local police are also required to report the matter to the Child
Welfare Committee within 24 hours of recording the complaint, for
long term rehabilitation of the child.

24. The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

25. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860),then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

26. The Provisions of this Act is in addition to and not in derogation of any other provisions of any other Law. In case of any consistency the provisions of this act will have an overriding effect on any other provisions.

27. The POCSO Act is only applicable to child survivors and adult offenders. In case two children have sexual relations with each other, or in case a child perpetrates a sexual offence on an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000, will
apply.


Duties of the Police as Specified in Protection of Children from Sexual Offences Rules 2012
1. As per Rule 4(1) of the Protection of Children from Sexual Offences
Rules 2012 when Police receive information of an offence committed
or attempted or likely to be committed it is the duty of the Police Official
to provide to the complainant:
(i) Name and Designation
(ii) Address and Telephone number
(iii) Name, Designation and contact details of the officer who
supervises him.
2. As per Rule 4(2) of the Protection of Children from Sexual Offences
Rules 2012 when Police receive information of an offence committed
or attempted or likely to be committed it is the duty of the Police Official
to :
i. Register an FIR
ii. Provide a copy of the FIR to the complainant
iii. If the Child is in medical emergency arrange for the same
immediately without delay
iv. Take the child to the Hospital accompanied by parents or
any person the child trusts
v. Ensure sample collection for forensic examination
vi. Inform the child and his parents about a support person , legal advice and right to be represented by a lawyer

3. As per Rule 4(3) of the Protection of Children from Sexual Offences
Rules 2012 when a child is exploited by a person in the family, shared
household or in shelter home and it is found out that the child is without
parental support or without home the SJPU or Police will produce the
child before the Child Welfare Committee within 24 hours with reasons
in writing that the child in in need of cars and protection and request for
a detailed assessment by the Child Welfare Committee. After making a
detailed assessment and as per Rule 4(7) the Child Welfare Committee
will provide a support person to the child.
4. As per Rule 4(9) of the Protection of Children from Sexual Offences
Rules 2012 the Police shall within 24 hours inform the Special Court of
the support person provided to the child in writing.
5. As per Rule 4(11) of the Protection of Children from Sexual
Offences Rules 2012 the Police shall inform the parents , support
person, guardian as the case may be about the developments of the
case arrest of the accused and details of various application filed.
6. As per Rule 4(12) of the Protection of Children from Sexual
Offences Rules 2012 the Police shall inform the parent or support
person or guardian the following :
(i) Availability of medical Services
(ii) Procedural steps involved in Criminal Prosecution
(iii) Availability of victim compensation
(iv) Arrest of the offender
(v) Filing of Charge against the offender
(vi) Dates of court proceedings
(vii) Bail or release of the Offender
(viii) Rendering of verdict
(ix) Sentence imposed on a an offender
7. As per Rule 5(3) of the Protection of Children from Sexual Offences Rules 2012 no medical practitioner shall demand any legal or magisterial requisition or other documentation as a prerequisite to rendering medical care.


Very Important:

A. It is a Punishable action if Police / Special Juvenile Police Unit fails to report a commission of the offence under this act [Section- 21 -(1) Protection of Children from Sexual Offences Act 2012 ]

B. If a Police Officer fails to register a case or take cognizance of the offence under Section 326-A, Section 326-B , Section 354,Section 354—B, Section 370,Section 370-A, Section 376,Section 376- A,Section 376-B, Section 376-C,Section 376-D, Section 376-E Indian Penal Code is punishable offence . [Section 166-A Indian Penal Code]

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Victimology

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whether Courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?

The 154th Law Commission Report on the CrPC devoted an entire chapter to ‘Victimology’ in which the growing emphasis on victim’s rights in criminal trials was discussed extensively as under:

“1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.
xx xx xx xx xx
9.1 The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for “securing the right to public assistance in cases of disablement and in other cases of undeserved want.” So also Article 51-A makes it a fundamental duty of every Indian citizen, inter alia ‘to have compassion for living creatures’ and to ‘develop humanism’. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.
9.2 However, in India the criminal law provides compensation to the victims and their dependants only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the Criminal Courts to grant compensation to the victims.

xx xx xx xx
11. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realized. The State should accept the principle of providing assistance to victims out of its own funds…”

The question then is whether the plenitude of the power vested in the Courts under Section 357 & 357-A, notwithstanding, the Courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the
Courts.

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Trial of Summons-Cases by Magistrates

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Law referencer

Chapter XX Trial of Summons-Cases by Magistrates

  • Punishment up to Two years 
  • The Summons / Warrants to be executed by Police. The copy of the Complaint along with all the documents relied upon by the Complainant must be furnished to the accused
  • Dismissal of Complaint for default – section 256
  • Examination of accused u/s 313
  • Section 353: Judgment
  • Section 360: Order to release on probation of good conduct or after admonition:
  • Section 309: Adjournments
  • Sections 406 to 412: Transfer of cases

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251. Substance of accusation to be stated

When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.


252. Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.


253. Conviction on plea of guilty in absence of accused in petty cases

(1) Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.

(2) The Magistrate may, in his discretion, convict in his accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.


254. Procedure when not convicted

(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.


255. Acquittal or conviction

(1) If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt, he shall record an order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.

(3) A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.


256. Non-appearance or death of complainant

(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.


257. Withdrawal of complaint

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.


258. Power to stop proceedings in certain cases

In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge.

Comment: Discharge of the accused or Respondent under this provision. This Provision could be applied in the proceeding of Domestic Violence Act 2005.


259. Power of Court to convert summons-cases into warrant cases

When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined.

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Offence under 138 of the Negotiable Instrument shall be tried as per chapter 20 of Cr.P.C if it is not tried by summarily

Proceeding under Domestic Violence Act 2005 shall be regulated by the Summons Provision.

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Electronic Evidence in Indian Law

Section 3. EVIDENCE”.— “ Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.

The expressions “Certifying Authority”, electronic signature, Electronic Signature Certificate, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000)


 Controller of Certifying Authorities(CCA

As per Section 18 of The Information Technology Act, 2000 provides the required legal sanctity to the digital signatures based on asymmetric cryptosystems. The digital signatures are now accepted at par with handwritten signatures and the electronic documents that have been digitally signed are treated at par with paper documents.

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22A. When oral admissions as to contents of electronic records are relevant

Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.

39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers

When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

45A. OPINION OF EXAMINER OF ELECTRONIC EVIDENCE—

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Explanation.— For the purposes of this section, an Examiner of Electronic Evidence shall be an expert;

47A. OPINION AS TO ELECTRONIC SIGNATURE WHEN RELEVANT —

When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.

65A. SPECIAL PROVISIONS AS TO EVIDENCE RELATING TO ELECTRONIC RECORD —

The contents of electronic records may be proved in accordance with the provisions of section 65B.

65B. ADMISSIBILITY OF ELECTRONIC RECORDS —

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a)the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b)during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c)throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d)the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—
(a)by a combination of computers operating over that period; or
(b)by different computers operating in succession over that period; or
(c)by different combinations of computers operating in succession over that period; or
(d)in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
(a)identifying the electronic record containing the statement and describing the manner in which it was produced;
(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c)dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—
(a)infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b)whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c)a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.— For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

67A. PROOF AS TO ELECTRONIC SIGNATURE —

Except in the case of a secure electronic signature, if the electronic signature of any subscriber is alleged to have been affixed to an electronic record the fact that such electronic signature is the electronic signature of the subscriber must be proved.

81A. Presumption as to Gazettes in electronic forms.

The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.

85A. Presumption as to electronic agreements —

The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.
85B. Presumption as to electronic records and 6 electronic signatures. —
(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—
(a)the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
(b)except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.

85C. Presumption as to Electronic Signature Certificates.— 

The Court shall presume, unless contrary is proved, that the information listed in a Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.

88A. Presumption as to electronic messages.—

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
Explanation.— For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

90A. Presumption as to electronic records five years old—

Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.
Explanation. —Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.
This Explanation applies also to section 81A.

131. PRODUCTION OF DOCUMENTS OR ELECTRONIC RECORDS WHICH ANOTHER PERSON, HAVING POSSESSION, COULD REFUSE TO PRODUCE

No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.

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  • Tomso Bruno and anr. V. State of U.P. on Dt. 20/01/2015
  •  Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012)
  • State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600
  • State of Maharashtra V. Dr. Praful Desai AIR 2003 S.C. 2053

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Commentaries on The Arms Act 1959

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The Arms Act, 1959

Chapter I – Preliminary
Chapter II – Acquisition, Possession, Manufacture, Sale, Import, Export and …
Chapter III – Provisions relating to Licences
Chapter IV – Powers and Procedure
Chapter V – Offences and Penalties
Chapter VI – Miscellaneous

The Arms Act, 1959
[23rd December, 1959]

An Act to consolidate and amend the law relating to arms and ammunition.
BE it enacted by Parliament in the Tenth Year of the Republic of India as follows:—

Chapter I

Preliminary

  1. Short title, extent and commencement.— (1) This Act may be called the Arms Act, 1959.
    (2) It extends to the whole of India.
    (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
  2. Definitions and interpretation.— (1) In this Act, unless the context otherwise requires,

(a)“acquisition” with its grammatical variations and cognate expressions, includes hiring, borrowing, or accepting as a gift;

(b) “ammunition” means ammunition for any firearm, and includes—
(i)rockets, bombs, grenades, shells and other missiles,
(ii)articles designed for torpedo service and submarine mining,
(iii)other articles containing, or designed or adapted to contain, explosive, fulminating or fissionable material or noxious liquid, gas or other such thing, whether capable of use with firearms or not,
(iv)charges for firearms and accessories for such charges,
(v)fuses and friction tubes,
(vi)parts of, and machinery for manufacturing, ammunition, and
(vii)such ingredients of ammunition as the Central Government may, by notification in the Official Gazette, specify in this behalf;

(c)“arms” means articles of any description designed or adapted as weapons for offences, or defence, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons;

(d)“district magistrate” in relation to any area for which a Commissioner of Police has been appointed, means the Commissioner of Police thereof and includes any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may be specified by the State Government in this behalf in relation to such area or parts;

(e) “firearms” means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,—
(i)artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things,
(ii)accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof,
(iii)parts of, and machinery for manufacturing, firearms, and
(iv)carriages, platforms and appliances for mounting, transporting and serving artillery;

(f) “licensing authority” means an officer or authority empowered to grant or renew licences under rules made under the Act, and includes, the Government;

(ff)“magistrate” means an Executive Magistrate under the Code of Criminal Procedure, 1973 (2 of 1974);

(g)“prescribed” means prescribed by rules made under this Act;

(h)“prohibited ammunition” means any ammunition, containing, or designed or adapted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, missiles articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition;
(i) “prohibited arms” means—
(i)firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or
(ii)weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing,
and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms;
(j)“public servant” has the same meaning as in section 21 of the Indian Penal Code (45 of 1860);

(k)“transfer” with its grammatical variations and cognate expressions, includes letting on hire, lending, giving and parting with possession.

(2)For the purposes of this Act, the length of the barrel of a firearm shall be measured from the muzzle to the point at which the charge is exploded on firing.
(3)Any reference in the Act to any law which is not in force in any area shall, in relation to that area, be construed as a reference to the corresponding law, if any, in force in that area.
(4)Any reference in this Act to any officer or authority shall, in relation to any area in which there is no officer or authority with the same designation, be construed as a reference to such officer or authority as may be specified by the Central Government by notification in the Official Gazette.

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Chapter II

Acquisition, Possession, Manufacture, Sale, Import, Export and Transport of Arms and Ammunition

 

3. Licence for acquisition and possession of firearms and ammunition.— (1)No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.

(2)Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.

(3)Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.

(4)The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section.

4. Licence for acquisition and possession of arms of specified description in certain cases.—If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.

5. Licence for manufacture, sale, etc., of arms and ammunition.—(1)No person shall — (a)use, manufacture, sell, transfer, convert, repair, test or prove, or
(b)expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,
any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.

(2) Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:
Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless—
(a)he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b)a period of not less than forty-five days has expired after the giving of such information.

6. Licence for the shortening of guns or conversion of imitation firearms into firearms.— No person shall shorten the barrel of a firearm or convert an imitation firearm into a firearm unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
Explanation.— In this section, the expression “imitation firearms” means anything which has the appearance of being a firearm, whether it is capable of discharging any shot, bullet or other missile or not.

7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition.— No person shall—
(a)acquire, have in his possession or carry; or
(b)use, manufacture, sell, transfer, convert, repair, test or prove; or
(c)expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,
any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.

8. Prohibition of sale or transfer of firearms not bearing identification marks— (1) No person shall obliterate, remove, alter or forge any name, number or other identification mark stamped or otherwise shown on a firearm.

(2) No person shall sell or transfer any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon in a manner approved by the Central Government.

(3) Whenever any person has in his possession any firearms without such name, number or other identification mark on which such name, number or other identification mark has been obliterated, removed, altered or forged, it shall be presumed unless the contrary is proved, that he has obliterated, removed, altered or forged that name, number or other identification mark:
Provided that in relation to a person who has in his possession at the commencement of this Act any firearm without such name, number or other identification mark stamped or otherwise shown thereon, the provisions of this sub-section shall not take effect until after the expiration of one year from such commencement.

9. Prohibition of acquisition or possession by, or of sale or transfer to young persons and certain other persons of firearms, etc.— (1) Notwithstanding anything in the foregoing provisions of this Act—
(a) no person,—
(i)who has not completed the age of twenty-one years, or
(ii)who has been sentenced on conviction of any offence involving violence or moral turpitude to imprisonment for any term at any time during a period of five years after the expiration of the sentence, or
(iii)who has been ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) a bond for keeping the peace or for good behaviour, at any time during the term of the bond,
shall acquire, have in his possession or carry any firearm or ammunition;
(b) no person shall sell or transfer any firearm or ammunition to, or convert, repair, test or prove any firearm or ammunition for, any other person whom he knows, or has reason to believe—
(i)to be prohibited under clause (a) from acquiring, having in his possession or carrying any firearm or ammunition, or
(ii)to be of unsound mind at the time of such sale or transfer, or such conversion, repair, test or proof.

(2) Notwithstanding anything in sub-clause (i) of clause (a) of sub-section (1), a person who has attained the prescribed age-limit may use under prescribed conditions such firearms as may be prescribed in the course of his training in the use of such firearms:
Provided that different age-limits may be prescribed in relation to different types of firearms.

10. Licence for import and export of arms, etc.— (1) No person shall bring into, or take out of, India by sea, land or air any arms or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

Provided that—
(a)a person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having, in his possession any arms or ammunition, may without a licence in this behalf bring into, or take out of, India such arms or ammunition in reasonable quantities for his own private use;
(b)a person being a bona fide tourist belonging to any such country as the Central Government may, by notification in the Official Gazette, specify, who is not prohibited by the laws of that country from having in his possession any arms or ammunition, may, without a licence under this section but in accordance with such conditions as may be prescribed, bring with him into India arms and ammunition in reasonable quantities for use by him for purposes only of sport and for no other purpose.
Explanation.— For purposes of clause (b) of this proviso, the word “tourist” means a person who not being a citizen of India visits India for a period not exceeding six months with no other object than recreation, sight-seeing, or participation in a representative capacity in meetings convened by the Central Government or in international conferences, associations or other bodies.

(2)Notwithstanding anything contained in the proviso to sub-section (1) where the Commissioner of Customs or any other officer empowered by the Central Government in this behalf has any doubt as to the applicability of clause (a) or clause (b) of that proviso to any person who claims that such clause is applicable to him, or as to the reasonableness of the quantities of arms or ammunition in the possession of any person referred to in such clause, or as to the use to which such arms or ammunition may be put by such person, may detain the arms or ammunition in the possession of such person until he receives the orders of the Central Government in relation thereto.

(3) Arms and ammunition taken from one part of India to another by sea or air or across any intervening territory not forming a part of India, are taken out of, and brought into, India within the meaning of this section.

11. Power to prohibit import or export of arms, etc.— The Central Government may, by notification in the Official Gazette, prohibit the bringing into, or the taking out of, India, arms or ammunition of such classes and descriptions as may be specified in the notification.

12. Power to restrict or prohibit transport of arms.— (1) The Central Government may, by notification in the Official Gazette,—
(a)direct that no person shall transport over India or any part thereof arms or ammunition of such classes and descriptions as may be specified in the notification unless he holds in this behalf a licence issued in accordance with provisions of this Act and the rules made thereunder; or
(b)prohibit such transport altogether.

(2) Arms or ammunition trans-shipped at a seaport or an airport in India are transported within the meaning of this section.

Devider
Chapter III

Provisions relating to Licences

13. Grant of licences.— (1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.

(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

(2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:
Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.

(3) The licensing authority shall grant—
(a) a licence under section 3 where the licence is required—
(i)by a citizen of India in repsect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection; or
(ii)in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;
(b)a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.

14. Refusal of licences.— (1) Notwithstanding anything in section 13, licensing authority shall refuse to grant—
(a)a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;
(b) a licence in any other case under Chapter II,—
(i)where such licence is required by a person whom the licensing authority has reason to believe—

(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or
(2) to be of unsound mind, or
(3) to be for any reason unfit for a licence under this Act; or
(ii)where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

15. Duration and renewal of licence—

(1) A licence under section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted:
Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so desires or if the licensing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period.

(2) A licence under any other provision of Chaper II shall, unless revoked earlier, continue in force for such period from the date on which it is granted as the licensing authority may in each case determine.

(3) Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of sections 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof.

16. Fees, etc., for licence.— The fees on payment of which, the conditions subject to which and the form in which a licence shall be granted or renewed shall be such as may be prescribed:
Provided that different fees, different conditions and different forms may be prescribed for different types of licences:
Provided further that a licence may contain in addition to prescribed conditions such other conditions as may be considered necessary by the licensing authority in any particular case.

17. Variation, suspension and revocation of licences.— (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.

(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence—
(a)if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or
(b)if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or
(c)if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or
(d)if any of the conditions of the licence has been contravened; or
(e)if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.

(4) The licensing authority may also revoke a licence on the application of the holder thereof.

(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence:
Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.

18. Appeals.— (1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:
Provided that no appeal shall lie against any order made by, or under the direction of the Government.
(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor:
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act, 1908 (9 of 1908), with respect to the computation of periods of limitation thereunder.
(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.
(5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed:
Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.
(6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.
(7) Every order of the appellate authority confirming, modifying or reversing the order appealed  against shall be final.Devider

Chapter IV

Powers and Procedure

19. Power to demand production of licence, etc.—

(1) Any police officer or any other officer specially empowered in this behalf by the Central Government may demand the production of his licence from any person who is carrying any arms or ammunition.

(2) If the person upon whom a demand is made refuses or fails to produce the licence or to show that he is entitled by virtue of this Act or any other law for the time being in force to carry such arms or ammunition without a licence, the officer concerned may require him to give his name and address and if such officer considers it necessary, seize from that person the arms or ammunition which he is carrying.

(3) If that person refuses to give his name and address or if the officer concerned suspects that person of giving a false name or address or of intending to abscond, such officer may arrest him without warrant.

20. Arrest of persons conveying arms, etc., under suspicious circumstances.— Where any person is found carrying or conveying any arms or ammunition whether covered by a licence or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are or is being carried by him with intent to use them, or that the same may be used, for any unlawful purpose, any magistrate, any police officer or any other public servant or any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, may arrest him without warrant and seize from him such arms or ammunition.

21. Deposit of arms, etc., on possession ceasing to be lawful.— (1)Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer incharge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury.
Explanation.— In this sub-section “unit armoury” includes an armoury in a ship or establishment of the Indian Navy.

(2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled—
(a)to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or
(b)to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal:
Provided that nothing in this sub-section shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under section 32.

(3) All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate:
Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing covered by the licence during the period of suspension.

(4) Before making an order under sub-section (3) the district magistrate shall by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited.

(5) After considering the cause, if any, shown by the depositor or as the case may be, his legal representative, the district magistrate shall pass such order as he thinks fit.

(6) The Government may at any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.

22. Search and seizure by magistrate.— (1) Whenever any magistrate has reason to believe—
(a)that any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, or
(b)that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety,
the magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such person or in which the magistrate has reason to believe that such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession.
(2)
Every search under this section shall be conducted by or in the presence of a magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government.

23. Search of vessels, vehicles for arms, etc.— Any magistrate, any police officer or any other officer specially empowered in this behalf by the Central Government, may for the purpose of ascertaining whether any contravention of this Act or the rules made thereunder is being or is likely to be committed, stop and search any vessel, vehicle or other means of conveyance and seize any arms or ammunition that may be found therein alongwith such vessel, vehicle or other means of conveyance.

24. Seizure and detention under orders of the Central Government.— The Central Government may at any time order the seizure of any arms or ammunition in the possession of any person, notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, and may detain the same for such period as it thinks necessary for the public peace and safety.

24A. Prohibition as to possession of notified arms in disturbed areas, etc.— (1) Where the Central Government is satisfied that there is extensive disturbance of public peace and tranquillity or imminent danger of such disturbance in any area and that for the prevention of offences involving the use of arms in such area, it is necessary or expedient so to do, it may by notification in the Official Gazette—
(a)specify the limits of such area;
(b)direct that before the commencement of the period specified in the notification (which period shall be a period commencing from a date not earlier than the fourth day after the date of publication of the notification in the Official Gazette), every person having in his possession in such area any arms of such description as may be specified in the notification (the arms so specified being hereafter in this section referred to as notified arms), shall deposit the same before such commencement in accordance with the provisions of section 21 and for this purpose the possession by such person of any notified arms shall, notwithstanding anything contained in any other provision of this Act (except section 41) or in any other law for the time being in force, as from the date of publication of such notification in the Official Gazette be deemed to have ceased to be lawful;
(c)declare that as from the commencement of, and until the expiry of, the period specified in the notification, it shall not be lawful for any person to have in his possession in such area any notified arms;

(d) authorise any such officer subordinate to the Central Government or a State Government as may be specified in the notification,—
(i)to search at any time during the period specified in the notification any person in, or passing through, or any premises in, or any animal or vessel or vehicle or other conveyance of whatever nature in or passing through, or any receptacle or other container of whatever nature in, such area if such officer has reason to believe that any notified arms are secreted by such person or in such premises or on such animal or in such vessel, vehicle or other conveyance or in such receptacle or other container;
(ii)to seize at any time during the period specified in the notification any notified arms in the possession of any person in such area or discovered through a search under sub-clause (i), and detain the same during the period specified in the notification.

(2) The period specified in a notification issued under sub-section (1) in respect of any area shall not, in the first instance, exceed ninety days, but the Central Government may amend such notification to extend such period from time to time by any period not exceeding ninety days at any one time if, in the opinion of that Government, there continues to be in such area such disturbance of public peace and tranquillity as is referred to in sub-section (1) or imminent danger thereof and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do.

(3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures shall, so far as may be, apply to any search or seizure made under sub-section (1).

(4) For the purposes of this section,—
(a)“arms” includes ammunition;
(b)where the period specified in a notification, as originally issued under sub-section (1), is extended under sub-section (2), then, in relation to such notification, references in sub-section (1) to “the period specified in the notification” shall be construed as references to the period as so extended.

24B. Prohibition as to carrying of notified arms in or through public places in disturbed areas, etc.— (1) Where the Central Government is satisfied that there is extensive disturbance of public peace and tranquillity or imminent danger of such disturbance in any area and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do, it may, by notification in the Official Gazette,—
(a)specify the limits of such area;
(b)direct that during the period specified in the notification (which period shall be a period commencing from a date not earlier than the second day after the date of publication of the notification in the Official Gazette), no person shall carry or otherwise have in his possession any arms of such description as may be specified in the notification (the arms so specified being hereafter in this section referred to as notified arms) through or in any public place in such area;

(c) authorise any such officer subordinate to the Central Government or a State Government as may be specified in the notification,—
(i)to search at any time during the period specified in the notification any person in or passing through, or any premises in or forming part of, or any animal or vessel or vehicle or other conveyance of whatever nature, in or passing through, or any receptacle or other container of whatever nature in, any public place in such area if such officer has reason to believe that any notified arms are secreted by such person or in such premises or on such animal or in such vessel, vehicle or other conveyance or in such receptacle or other container;
(ii)to seize at any time during the period specified in the notification any notified arms being carried by or otherwise in the possession of any person, through or in a public place in such area or discovered through a search under such-clause (i), and detain the same during the period specified in the notification.

(2) The period specified in a notification issued under sub-section (1) in respect of any area shall not, in the first instance, exceed ninety days, but the Central Government may amend such notification to extend such period from time to time by any period not exceeding ninety days at any one time if, in the opinion of that Government, there continues to be in such area such disturbance of public peace and tranquillity as is referred to in sub-section (1) or imminent danger thereof and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do.

(3) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974), relating to searches and seizures shall, so far as may be, apply to any search or seizure made under sub-section (1).

(4) For the purposes of this section,—
(a)“arms” includes ammunition;
(b)“public place” means any place intended for use by, or accessible to, the public or any section of the public; and
(c)where the period specified in a notification, as originally issued under sub-section (1), is extended under sub-section (2), then, in relation to such notification, references in sub-section (l) to “the period specified in the notification” shall be construed as references to the period as so extended.

Devider

Chapter V

Offences and Penalties

25. Punishment for certain offences— (1) Whoever— (a)manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b)shortens the barrel of a firearm or converts an immitation firearm into a firearm in contravention of section 6; or
(c)***
(d)bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11,
shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.

(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

(1AAA) Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years shall also be liable to fine.

(1B) Whoever— (a)acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b)acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c)sells or transfers any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d)being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e)sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f)brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g)transports any arms or ammunition in contravention of section 12; or
(h)fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i)being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept,
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.

(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.— For the purposes of this sub-section, “disturbed area” means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.

(2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine or with both.

(3) Whoever sells or transfers any firearm, ammunition or other arms—
(i)without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii)before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station,
in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.

(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.

(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.

26. Secret contraventions.— (1) Whoever does any act in contravention of any of the provisions of section 3, 4, 10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.

(2) Whoever does any act in contravention of any of the provisions of section 5, 6, 7 or 11 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and also with fine.

(3) Whoever on any search being made under section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine.

27. Punishment for using arms, etc.— (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.

28. Punishment for use and possession of firearms or imitation firearms in certain cases –     Whoever makes or attempts to make any use whatsoever of a firearm or an immitation firearm with intent to resist or prevent the lawful arrest or detention of himself or any other person shall be punishable with imprisonment for a term which may extend to seven years and with fine.
Explanation.— In this section the expression “immitation firearm” has the same meaning as in section 6.

29. Punishment for knowingly purchasing arms, etc., from unlicensed person or for delivering arms, etc., to person not entitled to possess the same.—

Whoever—
(a)purchases any firearms or any other arms of such class or description as may be prescribed or any ammunition from any other person knowing that such other person is not licensed or authorised under section 5; or
(b)delivers any arms or ammunition into the possession of another person without previously ascertaining that such other person is entitled by virtue of this Act or any other law for the time being in force to have, and is not prohibited by this Act or such other law from having, in his possession the same,
shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

30. Punishment for contravention of licence or rule.— Whoever contravenes any condition of a licence or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

31. Punishment for subsequent offences.— Whoever having been convicted of an offence under this Act is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.

32. Power to confiscate.— (1) When any person is convicted under this Act of any offence committed by him in respect of any arms or ammunition, it shall be in the discretion of the convicting court further to direct that the whole or any portion of such arms or ammunition, and any vessel, vehicle or other means of conveyance and any receptacle or thing containing, or used to conceal, the arms or ammunition shall be confiscated:
Provided that if the conviction is set aside on appeal or otherwise, the order of confiscation shall become void.

(2) An order of confiscation may also be made by the appellate court or by the High Court when exercising its powers of revision.

33. Offence by companies.— (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Explanation.— For the purposes of this section—
(a)“company” means any body corporate, and includes a firm or other association or individuals; and
(b)“director”, in relation to a firm, means a partner in the firm.

Devider

Chapter VI

Miscellaneous

34. Sanction of the Central Government for Warehousing of Arms.— Notwithstanding anything contained in the Customs Act, 1962 (52 of 1962) no arms or ammunition shall be deposited in any warehouse licensed under section 58 of that Act without the sanction of the Central Government.

35. Criminal responsibility of persons in occupation of premises in certain cases— Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone.

36. Information to be given regarding certain offences.— (1) Every person aware of the commission of any offence under this Act shall, in the absence of reasonable excuse the burden of proving which shall lie upon such person, give information of the same to the officer in charge of the nearest police station or the magistrate having jurisdiction.

(2) Every person employed or working upon any railway, aircraft, vessel, vehicle or other means of conveyance shall, in the absence of reasonable excuse the burden of proving which shall lie upon such person, give information to the officer in charge of the nearest police station regarding any box, package or bale in transit which he may have reason to suspect contains arms or ammunition in respect of which an offence under this Act has been or is being committed.

37. Arrest and searches.— Save as otherwise provided in this Act,— (a)all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating respectively to arrests and searches made under that Code;

(b) any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered without delay to the officer in charge of the nearest police station and that officer shall—
(i)either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody till the appearance of that person before the magistrate, or
(ii)should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay before the magistrate.

38. Offences to be cognizable.— Every offence under this Act shall be cognizable within the meaning of the Code of Criminal Procedure, 1973 (2 of 1974).

39. Previous sanction of the district magistrate necessary in certain cases.— No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.

40. Protection of action taken in good faith.— No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

41. Power to exempt.— Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions, if any, as it may specify in the notification,

(a)exempt any person or class of persons (either generally or in relation to such description of arms and ammunition as may be specified in the notification), or exclude any description of arms or ammunition, or withdraw any part of India, from the operation of all or any of the provisions of this Act; and

(b)as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons or the description of arms and ammunition or the part of India to the operation of such provisions.

42. Power to take census of firearms.— (1) The Central Government may, by notification in the Official Gazette, direct a census to be taken of all firearms in any area and empower any officer of Government to take such census.

(2) On the issue of any such notification all persons having in their possession any firearms in that area shall furnish to the officer concerned such information as he may require in relation thereto and shall produce before him such firearms if he so requires.

43. Power to delegate.— (1) The Central Government may, by notification in the Official Gazette, direct that any power or function which may be exercised or performed by it under this Act other than the power under section 41 or the power under section 44 may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised or performed also by—

(a)such officer or authority subordinate to the Central Government, or

(b)such State Government or such officer or authority subordinate to the State Government, as may be specified in the notification.

(2) Any rules made by the Central Government under this Act may confer powers or impose duties or authorise the conferring of powers or imposition of duties upon any State Government or any officer or authority subordinate thereto.

44. Power to make rules.— (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a)the appointment, jurisdiction, control and functions of licensing authorities including the areas and the categories of arms and ammunition for which they may grant licences;
(b)the form and particulars of application for the grant or renewal of a licence and where the application is for the renewal of a licence, the time within which it shall be made;
(c)the form in which and the conditions subject to which any licence may be granted or refused, renewed, varied, suspended or revoked;
(d)where no period has been specified in this Act, the period for which any licence shall continue to be in force;
(e)the fees payable in respect of any application for the grant or renewal of a licence and in respect of any licence granted or renewed and the manner of paying the same;
(f)the manner in which the maker’s name, the manufacturer’s number or other identification mark of a firearm shall be stamped or otherwise shown thereon;
(g)the procedure for the test or proof of any firearms;
(h)the firearms that may be used in the course of training, the age limits of persons who may use them and the conditions for their use by such persons;
(i)the authority to whom appeals may be preferred under section 18, the procedure to be followed by such authority and the period within which appeals shall be preferred, the fees to be paid in respect of such appeals and the refund of such fees;
(j)the maintenance of records or accounts of anything done under a licence other than a licence under section 3 or section 4, the form of, and the entries to be made in, such records or accounts and the exhibition of such records or accounts to any police officer or to any officer of Government empowered in this behalf;
(k)the entry and inspection by any police officer or by any officer of Government empowered in this behalf of any premises or other place in which arms or ammunition are or is manufactured or in which arms or ammunition are or is kept by a manufacturer of or dealer in such arms or ammunition and the exhibition of the same to such officer;
(l)the conditions subject to which arms or ammunition may be deposited with a licensed dealer or in a unit armoury as required by sub-section (1) of section 21 and the period on the expiry of which the things so deposited may be forfeited;
(m)any other matter is to be, or may be, prescribed.
(3)
Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid; both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

45. Act not to apply in certain cases.— Nothing in this Act shall apply to— (a)arms or ammunition on board any sea-going vessel or any aircraft and forming part of the ordinary armament or equipment of such vessel or aircraft;
(b) the acquisition, possession or carrying, the manufacture, repair, conversion, test or proof, the sale or transfer or the import, export or transport of arms or ammunition—
(i)by or under orders of the Central Government, or
(ii)by a public servant in the course of his duty as such public servant, or
(iii)by a member of the National Cadet Corps raised and maintained under the National Cadet Corps Act, 1948 (31 of 1948), or by any officer, enrolled person of the Territorial Army raised and maintained under the Territorial Army Act, 1948 (56 of 1948) or by any member of any other forces raised and maintained or that may hereafter be raised and maintained under any Central Act, or by any member of such other forces as the Central Government may, by notification in the Official Gazette, specify, in the course of his duty as such member, officer or enrolled person;
(c)any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a firearm either with or without repair;
(d)the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person.

46. Repeal of Act 11 of 1878.— (1) The Indian Arms Act, 1878, is hereby repealed.
(2) Notwithstanding the repeal of the Indian Arms Act, 1878 (11 of 1878), and without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 (10 of 1897), every licence granted or renewed under the first mentioned Act and in force immediately before the commencement of this Act shall, unless sooner revoked, continue in force after such commencement for the unexpired portion of the period for which it has been granted or renewed.
Devider

Supreme Court Cases

Related image

Sanjay Dutt vs State Through C.B.I. [MARCH 21, 2013.]

 

©Advocatetanmoy Law Library

 

 

Commentaries on Negotiable Instrument Act 1881

The Negotiable Instruments Act, 1881

[9th December, 1881]

  CHAPTER-1

  1. Short title.— This Act may be called The Negotiable Instruments Act, 1881.

Local extent, saving of usages relating to Hundis, etc., Commencement.— It extends to the whole of India but nothing herein contained affects the Indian Paper Currency Act, 1871 (3 of 1871), section 21, or affects any local usage relating to any instrument in an oriental language: Provided that such usages may be excluded by any words in the body of the instrument, which indicate an intention that the legal relations of the parties thereto shall be governed by this Act; and it shall come into force on the first day of March, 1882.

  1. Repeal of enactments.— Rep. by the Amending Act, 1891 (12 of 1891), sec. 2 and Sch. I.
  1. Interpretation clause.—In this Act— “Banker”.— “banker” includes any person acting as a banker and any post office savings bank.

Devider

CHAPTER 2

OF NOTES, BILLS , BILLS AND CHEQUES

  1. “Promissory note”.—A “promissory note” is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

Illustrations

A signs instruments in the following terms:—

(a)“I promise to pay B or order Rs. 500.”

(b)”I acknowledge myself to be indebted to B in Rs. 1,000, to be paid on demand, for value received.”

(c)“Mr. B. I.O.U. Rs. 1,000.”

(d)“I promise to pay B Rs. 500 and all other sums which shall be due to him.”

(e)“I promise to pay B Rs. 500 first deducting there out any money which he may owe me.”

(f)“I promise to pay B Rs. 500 seven days after my marriage with C.”

(g)“I promise to pay B Rs. 500 on D’s death, provided D leaves me enough to pay that sum.”

(h)“I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next.”

The instruments respectively marked (a) and (b) are promissory notes. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes.

  1. “Bill of exchange”.— A “bill of exchange” is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.

A promise or order to pay is not “conditional”, within the meaning of this section and section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain.

The sum payable may be “certain”, within the meaning of this section and section 4, although it includes future interest or is payable at an indicated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due.

The person to whom it is clear that the direction is given or that payment is to be made may be a “certain person”, within the meaning of this section and section 4, although he is mis-named or designated by description only.

  1. “Cheque”.— A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.

Explanation I.—For the purposes of this section, the expressions—

(a)”a cheque in the electronic form” means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be;

(b)“a truncated cheque” means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.

Explanation II.—For the purposes of this section, the expression “clearing house” means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.

Explanation III.—For the purposes of this section, the expressions “asymmetric crypto system”, “computer resource”, “digital signature”, “electronic form” and “electronic signature” shall have the same meanings respectively assigned to them in the Information Technology Act, 2000.

  1. “Drawer”, “drawee”.— The maker of a bill of exchange or cheque is called the “drawer”; the person thereby directed to pay is called the “drawee”.

“drawee in case of need”. —When in the bill or in any indorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a “drawee in case of need”.

“acceptor”. —After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such parts, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the “acceptor”.

“acceptor for honour”. — 2 When a bill of exchange has been noted or protested for non-acceptance or for better security, and any person accepts it supra protest for honour of the drawer or of any one of the indorsers, such person is called an “acceptor for honour”.

“Payee”. —The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.

  1. “Holder”.— The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.

  1. “Holder in due course”.— “Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
  1. “Payment in due course”.— “Payment in due course” means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.
  1. “Inland instrument”.— A promissory note, bill of exchange or cheque drawn or made in India and made payable in, or drawn upon any person resident in, India shall be deemed to be an inland instrument.
  1. “Foreign instrument.”— Any such instrument not so drawn, made or made payable shall be deemed to be a foreign instrument.
  1. “Negotiable instrument”.— (1) A “negotiable instrument” means a promissory note, bill of exchange or cheque payable either to order or to bearer.

Explanation (i).— A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable.

Explanation (ii).— A promissory note, bill of exchange or cheque is payable to bearer which is expressed to be so payable or on which the only or last indorsement is an indorsement in blank.

Explanation (iii).— Where a promissory note, bill of exchange or cheque, either originally or by indorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option.

(2) A negotiable instrument may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several payees.

  1. Negotiation.— When a promissory note, bill of exchange or cheque is transferred to any person, so as to constitute the person the holder thereof, the instrument is said to be negotiated.
  1. Indorsement.— When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same, and is called the “indorser”.
  1. Indorsement “in blank” and “in full”—”Indorsee”.— (1) If the indorser signs his name only, the indorsement is said to be “in blank”, and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the indorsement is said to be “in full”, and the person so specified is called the “indorsee” of the instrument.

(2) The provisions of this Act relating to a payee shall apply with the necessary modifications to an indorsee.

  1. Ambiguous instruments.— Where an instrument may be construed either as a promissory note or bill of exchange, the holder may at his election treat it as either and the instrument shall be thence forward treated accordingly.
  1. Where amount is stated differently in figures and words.— If the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid.
  1. Instruments payable on demand.— A promissory note or bill of exchange, in which no time for payment is specified, and a cheque, are payable on demand.
  1. Inchoate stamped instruments.— Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in

India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.

  1. “At sight”, “On presentment”, “After sight”.— In a promissory note or bill of exchange the expressions “at sight” and “on presentment” means on demand. The expression “after sight” means, in a promissory note, after presentment for sight, and, in a bill of exchange after acceptance, or noting for non-acceptance, or protest for non-acceptance.
  1. “Maturity”.— The maturity of a promissory note or bill of exchange is the date at which it falls due.

Days of grace.— Every promissory note or bill of exchange which is not expressed to be payable on demand, at sight or on presentment is at maturity on the third day after the day on which it is expressed to be payable.

  1. Calculating maturity of bill or note payable so many months after date or sight.— In calculating the date at which a promissory note or bill of exchange, made payable at stated number of months after date or after sight, or after a certain event, is at maturity, the period stated shall be held to terminate on the day of months which corresponds with the day on which the instrument is dated, or presented for acceptance or sight, or noted for non-acceptance, or protested for non-acceptance, or the event happens, or, where the instrument is a bill of exchange made payable a stated number of months after sight and has been accepted for honour, with the day on which it was so accepted. If the month in which the period would terminate has no corresponding day, the period shall be held to terminate on the last day of such month.

Illustrations

(a)A negotiable instrument dated 29th January, 1878, is made payable at one month after date. The instrument is at maturity on the third day after the 28th February, 1878.

(b)A negotiable instrument, dated 30th August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.

(c)A promissory note or bill of exchange, dated 31st August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.

  1. Calculating maturity of bill or note payable so many days after date or sight.— In calculating the date at which a promissory note or bill of exchange made payable a certain number of days after date or after sight or after a certain event is at maturity, the day of the date, or of presentment for acceptance or sight, or of protest for non-acceptance, or on which the event happens, shall be excluded.
  1. When day of maturity is a holiday.— When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day.

Explanation.— The expression “Public holiday” includes Sundays and any other day declared by the Central Government, by notification in the Official Gazette, to be a public holiday.

Devider

CHAPTER- 3

PARTIES TO NOTES , BILLS AND CHEQUES

  1. Capacity to make, etc., promissory notes, etc.—Every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by the making, drawing, acceptance, indorsement, delivery and negotiation of a promissory note, bill of exchange or cheque.

(Minor)—A minor may draw, indorse, deliver and negotiate such instruments so as to bind all parties except himself.

Nothing herein contained shall be deemed to empower a corporation to make, indorse or accept such instruments except in cases in which, under the law for the time being in force, they are so empowered.

  1. Agency.— Every person capable of binding himself or of being bound, as mentioned in section 26, may so bind himself or be bound by a duly authorized agent acting in his name.

A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or indorsing bills of exchange so as to bind his principal.

An authority to draw bills of exchange does not of itself import an authority to indorse.

  1. Liability of agent signing.—An agent who signs his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.
  1. Liability of legal representative signing.— legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such.
  1. Liability of drawer.—The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided.
  1. Liability of drawee of cheque.—The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default.
  1. Liability of maker of note and acceptor of bill.—In the absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand.

In default of such payment as aforesaid, such maker or acceptor is bound to compensate any party to the note or bill for any loss or damage sustained by him and caused by such default.

  1. Only drawee can be acceptor except in need or for honour.—No person except the drawee of a bill of exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by an acceptance.
  1. Acceptance by several drawees not partners.—Where there are several drawees of a bill of exchange who are not partners, each of them can accept it for himself, but non of them can accept it for another without his authority.
  1. Liability of indorser.—In the absence of a contract to the contrary, whoever indorses and delivers a negotiable instrument before maturity, without, in such indorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, in case of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonour, provided due notice of dishonour has been given to, or received by, such indorser as hereinafter provided.

Every indorser after dishonour is liable as upon an instrument payable on demand.

  1. Liability of prior parties to holder in due course.—Every prior party to a negotiable instrument is liable thereon to a holder in due course until the instrument is duly satisfied.
  1. Maker, drawer and acceptor principals.—The maker of a promissory note or cheque, the drawer of a bill of exchange until acceptance, and the acceptor are, in the absence of a contract to the contrary, respectively liable thereon as principal debtors, and the other parties thereto are liable thereon as sureties for the maker, drawer or acceptor, as the case may be.
  1. Prior party a principal in respect of each subsequent party.—As between the parties so liable as sureties, each prior party is, in the absence of a contract to the contrary, also liable thereon as a principal debtor in respect of each subsequent party.

Illustration

A draws a bill payable to his own order on B, who accepts, A afterwards indorses the bill to C, C to D, and D to E. As between E and B, B is the principal debtor, and A, C and D are his sureties. As between E and A, A is the principal debtor, and C and D are his sureties. As between E and C, C is the principal debtor and D is his surety.

  1. Suretyship.—When the holder of an accepted bill of exchange enters into any contract with the acceptor which, under section 134 or 135 of the Indian Contract Act, 1872 (9 of 1872), would discharge the other parties, the holder may expressly reserve his right to charge the other parties, and in such case they are not discharged.
  1. Discharge of indorser’s liability.—Where the holder of a negotiable instrument, without the consent of the indorser, destroys or impairs the indorser’s remedy against a prior party, the indorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity.

Illustration

A is the holder of a bill of exchange made payable to the order of B, which contains the following indorsements in blank:—

First indorsement, “B”.

Second indorsement, “Peter Williams”.

Third indorsement “Wright & Co.”.

Fourth indorsement, “John Rozario”.

This bill A puts in suit against John Rozario and strikes out, without John Rozario’s consent, the indorsements by Peter Williams and Wright & Co. A is not entitled to recover anything from John Rozario.

  1. Discharge of indorser’s liability.—Where the holder of a negotiable instrument, without the consent of the indorser, destroys or impairs the indorser’s remedy against a prior party, the indorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity.

Illustration

A is the holder of a bill of exchange made payable to the order of B, which contains the following indorsements in blank:—

First indorsement, “B”.

Second indorsement, “Peter Williams”.

Third indorsement “Wright & Co.”.

Fourth indorsement, “John Rozario”.

This bill A puts in suit against John Rozario and strikes out, without John Rozario’s consent, the indorsements by Peter Williams and Wright & Co. A is not entitled to recover anything from John Rozario.

  1. Acceptor bound, although indorsement forged.—An acceptor of a bill of exchange already indorsed is not relieved from liability by reason that such indorsement is forged, if he knew or had reason to believe the indorsement to be forged when he accepted the bill.
  1. Acceptance of bill drawn in fictitious name.—An acceptor of a bill of exchange drawn in a fictitious name and payable to the drawer’s order is not, by reason that such name is fictitious, relieved from liability to any holder in due course claiming under an indorsement by the same hand as the drawer’s signature, and purporting to be made by the drawer.
  1. Negotiable instrument made, etc., without consideration.—A negotiable instrument made, drawn, accepted, indorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such party has transferred the instrument with or without indorsement to a holder for consideration, such holder, and every subsequent holder deriving title from him, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto.

Exception I.—

No party for whose accommodation a negotiable instrument has been made, drawn, accepted or indorsed can, if he has paid the amount thereof, recover thereon such amount from any person who became a party to such instrument for his accommodation.

Exception II.—

No party to the instrument who has induced any other party to make, draw, accept, indorse or transfer the same to him for a consideration which he has failed to pay or perform in full shall recover therein an amount exceeding the value of the consideration (if any) which he has actually paid or performed.

  1. Partial absence or failure of money-consideration.—When the consideration for which a person signed a promissory note, bill of exchange or cheque consisted of money, and was originally absent in part or has subsequently failed in part, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.

Explanation.—

The drawer of a bill of exchange stands in immediate relation with the acceptor. The maker of a promissory note, bill of exchange or cheque stands in immediate relation with the payee, and the indorser with his indorsee. Other signers may by agreement stand in immediate relation with a holder.

Illustration

A draws a bill on B for Rs. 500 payable to the order of A. B accepts the bill, but subsequently dishonours it by non-payment. A sues B on the bill, B proves that it was accepted for value as to Rs. 400, and as an accommodation to the plaintiff as to the residue. A can only recover Rs. 400.

  1. Partial failure of consideration not consisting of money.—Where a part of the consideration for which a person signed a promissory note, bill of exchange or cheque, though not consisting of money, is ascertainable in money without collateral enquiry, and there has been a failure of that party, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.

45A. Holder’s right to duplicate of lost bill.—Where a bill of exchange has been lost before it is over-due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again.

If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so.

45A. Holder’s right to duplicate of lost bill.—Where a bill of exchange has been lost before it is over-due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again.

If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so.

Devider

CHAPTER-4

OF NEGOTIATION

  1. Delivery.—The making, acceptance or indorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive.

As between parties standing in immediate relation; delivery to be effectual must be made by the party making, accepting or indorsing the instrument, or by a person authorized by him in that behalf.

As between such parties and any holder of the instrument other than a holder in due course, it may be shown that the instrument was delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein.

A promissory note, bill of exchange or cheque payable to bearer is negotiable by the delivery thereof.

A promissory note, bill of exchange or cheque payable to order is negotiable by the holder by indorsement and delivery thereof.

  1. Negotiation by delivery.—Subject to the provisions of section 58, a promissory note, bill of exchange or cheque payable to bearer is negotiable by delivery thereof.

Exception —A promissory note, bill of exchange or cheque delivered on condition that it is not to take effect except in a certain event is not negotiable (except in the hands of a holder for value without notice of the condition) unless such event happens.

Illustrations

(a)A, the holder of a negotiable instrument payable to bearer, delivers it to B’s agent to keep for B. The instrument has been negotiated.

(b)A, the holder of a negotiable instrument payable to bearer, which is in the hands of A’s banker, who is at the time the banker of B, directs the banker to transfer the instrument to B’s credit in the banker’s account with B. The banker does so, and accordingly now possesses the instrument as B’s agent. The instrument has been negotiated, and B has become the holder of it.

  1. Negotiation by indorsement.—Subject to the provisions of section 58, a promissory note, bill of exchange or cheque payable to order, is negotiable by the holder by indorsement and delivery thereof.
  1. Conversion of indorsement in blank into indorsement in full.— The holder of a negotiable instrument indorsed in blanks may, without signing his own name, by writing above the indorser’s signature a direction to pay to any other person as indorsee, convert the indorsement in blank into an indorsement in full; and the holder does not thereby incur the responsibility of an indorser.
  1. Effect of indorsement.— The indorsement of a negotiable instrument followed by delivery transfers to the indorsee the property therein with the right of further negotiation; but the indorsement may, by express words, restrict or exclude such right, or may merely constitute the indorsee an agent to indorse the instrument, or to receive its contents for the indorser, or for some other specified person.

Illustrations

B signs the following indorsements on different negotiable instruments payable to bearer:—

(a)“Pay the contents to C only.”

(b)“Pay C for my use.”

(c)“Pay C or order for the account of B.”

(d)“The within must be credited to C.”

These indorsements exclude the right of further negotiation by C.

(e)“Pay C.”

(f)“Pay C value in account with the Oriental Bank.”

(g)“Pay the contents to C, being part of the consideration in a certain deed of assignment executed by C to the indorser and others.”

These indorsements do not exclude the right of further negotiation by C.

  1. Who may negotiate.— Every sole maker, drawer, payee or indorsee, or all of several joint makers, drawers, payees or indorsees, of a negotiable instrument may, if the negotiability of such instrument has not been restricted or excluded as mentioned in section 50, indorse and negotiate the same.

Explanation.—

Nothing in this section enables a maker or drawer to indorse or negotiate an instrument, unless he is in lawful possession or is holder thereof; or enables a payee or indorsee to indorse or negotiate an instrument, unless he is holder thereof.

Illustration

A bill is drawn payable to A or order. A indorses it to B, the indorsement not containing the words “or order” or any equivalent words. B may negotiate the instrument.

  1. Indorser who excludes his own liability or makes it conditional.— The indorser of a negotiable instrument may, by express words in the indorsement, exclude his own liability thereon, or make such liability or the right of the indorsee to receive the amount due thereon depend upon the happening of a specified event, although such event may never happen.

Where an indorser so excludes his liability and afterwards becomes the holder of the instrument all intermediate indorsers are liable to him.

Illustrations

(a)The indorser of a negotiable instrument signs his name, adding the words— “Without recourse”.

Upon this indorsement he incurs no liability.

(b)A is the payee and holder of a negotiable instrument. Excluding personal liability by an indorsement “without recourse”, he transfers the instrument to B, and B indorses it to C, who indorses it to A. A is not only reinstated in his former rights, but has the rights of an indorsee against B and C.

  1. Holder deriving title from holder in due course.— A holder of a negotiable instrument who derives title from a holder in due course has the rights thereon of that holder in due course.
  1. Instrument indorsed in blank.— Subject to the provisions hereinafter contained as to crossed cheques, a negotiable instrument indorsed in blank is payable to the bearer thereof even although originally payable to order.
  1. Conversion of indorsement in blank into indorsement in full.— If a negotiable instrument, after having been indorsed in blank, is indorsed in full, the amount of it cannot be claimed from the indorser in full, except by the person to whom it has been indorsed in full, or by one who derives title through such person.
  1. Indorsement for part of sum due.— No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance.
  1. Legal representative cannot by delivery only negotiate instrument indorsed by deceased.— The legal representative of a deceased person cannot negotiate by delivery only a promissory note, bill of exchange or cheque payable to order and indorsed by the deceased but not delivered.
  1. Instrument obtained by unlawful means or for unlawful consideration.— When a negotiable instrument has been lost, or has been obtained from any maker, acceptor or holder thereof by means of an offence or fraud, or for an unlawful consideration, no possessor or indorsee who claims through the person who found or so obtained the instrument is entitled to receive the amount due thereon from such maker, acceptor or holder, or from any party prior to such holder, unless such possessor or indorsee is, or some person through whom he claims was, a holder thereof in due course.
  1. Instrument acquired after dishonour or when overdue.— The holder of a negotiable instrument, who has acquired it after dishonour, whether by non-acceptance or non-payment, with notice thereof, or after maturity, has only, as against the other parties, the rights thereon of his transferor.

Accommodation note or bill.—

Provided that any person who, in good faith and for consideration, becomes the holder, after maturity, of a promissory note or bill of exchange made, drawn or accepted without consideration, for the purpose of enabling some party thereto to raise money thereon, may recover the amount of the note or bill from any prior party.

Illustration

The acceptor of a bill of exchange, when he accepted it, deposited with the drawer certain goods as a collateral security for the payment of the bill, with power to the drawer to sell the goods and apply the proceeds in discharge of the bill if it were not paid at maturity. The bill not having been paid at maturity, the drawer sold the goods and retained the proceeds, but indorsed the bill to A. A’s title is subject to the same objection as the drawer’s title.

Devider

CHAPTER-5

OF PRESENTMENT

  1. Instrument negotiable till payment or satisfaction.— A negotiable instrument may be negotiated (except by the maker, drawee or acceptor after maturity) until payment or satisfaction thereof by the maker, drawee or acceptor at or after maturity, but not after such payment or satisfaction.
  1. Presentment for acceptance.— A bill of exchange payable after sight must, if no time or place is specified therein for presentment, be presented to the drawee thereof for acceptance, if he can, after reasonable search, be found, by a person entitled to demand acceptance, within a reasonable time after it is drawn, and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.

If the drawee cannot, after reasonable search, be found, the bill is dishonoured.

If the bill is directed to the drawee at a particular place, it must be presented at that place; and if at the due date for presentment he cannot, after reasonable search, be found there, the bill is dishonoured.

Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.

  1. Presentment of promissory note for sight.— A promissory note, payable at a certain period after sight must be presented to the maker thereof for sight (if he can after reasonable search be found) by a person entitled to demand payment, within a reasonable time after it is made and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.
  1. Drawee’s time for deliberation.— The holder must, if so required by the drawee of a bill of exchange presented to him for acceptance, allow the drawee forty-eight hours (exclusive of public holidays) to consider whether he will accept it.
  1. Drawee’s time for deliberation.— The holder must, if so required by the drawee of a bill of exchange presented to him for acceptance, allow the drawee forty-eight hours (exclusive of public holidays) to consider whether he will accept it.
  1. Presentment for payment.— (1) Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder.

Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.

Exception —Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof.

(2) Notwithstanding anything contained in section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information regarding the truncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is entitled to further demand the presentment of the truncated cheque itself for verification:

Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordingly.

  1. Hours for presentment.— Presentment for payment must be made during the usual hours of business and, if at a banker’s, within banking hours.
  1. Presentment for payment of instrument payable after date or sight.— A promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity.
  1. Presentment for payment of promissory note payable by instalments.— A promissory note payable by instalments must be presented for payment on the third day after the date fixed for payment of each instalment; and non-payment on such presentment has the same effect as non-payment of a note at maturity.
  1. Presentment for payment of instrument payable at specified place and not elsewhere.— A promissory note, bill of exchange or cheque made, drawn or accepted payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place.
  1. Instrument payable at specified place.— A promissory note or bill of exchange made, drawn or accepted payable at a specified place must, in order to charge the maker or drawer thereof, be presented for payment at the place.
  1. Presentment where no exclusive place specified.— A promissory note or bill of exchange, not made payable as mentioned in sections 68 and 69, must be presented for payment at the place of business (if any), or at the usual residence, of the maker, drawee or acceptor thereof, as the case may be.
  1. Presentment when maker, etc., has no known place of business or residence.— If the maker, drawee or acceptor of a negotiable instrument has no known place of business or fixed residence, and no place is specified in the instrument for presentment for acceptance or payment such presentment may be made to him in person wherever he can be found.
  1. Presentment of cheque to charge drawer.— Subject to the provisions of section 84 a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer.
  1. Presentment of cheque to charge any other person.— A cheque must, in order to charge any person except the drawer, be presented within a reasonable time after delivery thereof by such person.
  1. Presentment of instrument payable on demand.— Subject to the provisions of section 31, a negotiable instrument payable on demand must be presented for payment within a reasonable time after it is received by the holder.
  1. Presentment by or to agent, representative of deceased, or assignee of insolvent.—Presentment for acceptance or payment may be made to the duly authorized agent of the drawee, maker or acceptor, as the case may be, or, where the drawee, maker or acceptor has died, to his legal representative, or, where he has been declared an insolvent, to his assignee.

75A. Excuse for delay in presentment for acceptance or payment.— Delay in presentment for acceptance or payment is excused if the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made within a reasonable time.

  1. When presentment unnecessary.— No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following cases:—

(a)if the maker, drawee or acceptor intentionally prevents the presentment of the instrument, or

if the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or

if the instrument being payable at some other specified place, neither he nor any person authorized to pay it attends at such place during the usual business hours, or

if the instrument not being payable at any specified place, he cannot after due search be found;

(b)as against any party sought to be charged therewith, if he has engaged to pay notwithstanding non-presentment;

(c)as against any party if, after maturity, with knowledge that the instrument has not been presented—

he makes a part payment on account of the amount due on the instrument,

or promises to pay the amount due thereon in whole or in part,

or otherwise waives his right to take advantage of any default in presentment for payment;

(d)as against the drawer, if the drawer could not suffer damage from the want of such presentment.

  1. Liability of banker for negligently dealing with bill presented for payment.— When a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonoured, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss.

Devider

  1. To whom payment should be made.— Subject to the provisions of section 82, clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.
  1. Interest when rate specified.— When interest at a specified rate is expressly made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the court directs.
  1. Interest when no rate specified.— When no rate of interest is specified in the instrument, interest on the amount due thereon shall, notwithstanding any agreement relating to interest between any parties to the instrument, be calculated at the rate of eighteen per centum per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs.

Explanation.— When the party charged is the indorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour.

  1. Delivery of instrument on payment or indemnity in case of loss.—(1)Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or if the instrument is lost or cannot be produced, to be indemnified against any further claim thereon against him.

(2)Where the cheque is an electronic image of a truncated cheque, even after the payment the banker who received the payment shall be entitled to retain the truncated cheque.

(3)A certificate issued on the foot of the printout of the electronic image of a truncated cheque by the banker who paid the instrument, shall be prima facie proof of such payment.

Devider

CHAPTER -7

OF DISCHARGE FROM LIABILITY ON NOTES, BILLS AND CHEQUES

  1. Discharge from liability.—The maker, acceptor or indorser respectively of a negotiable instrument is discharged from liability thereon—

(a)By cancellation.—to a holder thereof who cancels such acceptor’s or indorser’s name with intent to discharge him, and to all parties claiming under such holder;

(b)By release.— to a holder thereof who otherwise discharges such maker, acceptor or indorser, and to all parties deriving title under such holder after notice of such discharge;

(c)By payment.—to all parties thereto, if the instrument is payable to bearer, or has been indorsed in blank, and such maker, acceptor or indorser makes payment in due course of the amount due thereon.

  1. Discharge by allowing drawee more than forty-eight hours to accept.—If the holder of a bill of exchange allows the drawee more than forty-eight hours, exclusive of public holidays, to consider whether he will accept the same, all previous parties not consenting to such allowance are thereby discharged from liability to such holder.
  1. When cheque not duly presented and drawer damaged thereby.—(1)Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheque paid and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of the banker to a large amount than he would have been if such cheque had been paid.

(2)In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case.

(3)The holder of the cheque as to which such drawer or person is so discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge and entitled to recover the amount from him.

Illustrations

(a)A draws a cheque for Rs. 1,000, and, when the cheque ought to be presented, has funds at the bank to meet it. The bank fails before the cheque is presented. The drawer is discharged, but the holder can prove against the bank for the amount of the cheque.

(b)A draws a cheque at Ambala on a bank in Calcutta. The bank fails before the cheque could be presented in ordinary course. A is not discharged, for he has not suffered actual damage through any delay in presenting the cheque.

  1. Cheque payable to order.—(1)Where a cheque payable to order purports to be indorsed by or on behalf of the payee, the drawee is discharged by payment in due course.

(2)Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any indorsement whether in full or in blank appearing thereon, and notwithstanding that any such indorsement purports to restrict or exclude further negotiation.

85A. Drafts drawn by one branch of a bank on another payable to order.—Where any draft, that is an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of money payable to order on demand, purports to be indorsed by or on behalf of the payee, the bank is discharged by payment in due course.

  1. Parties not consenting discharged by qualified or limited acceptance.—If the holder of a bill of exchange acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent is not obtained to such acceptance are discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance.

Explanation.—An acceptance is qualified—

(a)where it is conditional, declaring the payment to be dependent on the happening of an event therein stated;

(b)where it undertakes the payment of part only of the sum order to be paid;

(c)where no place of payment being specified on the order, it undertakes the payment at a specified place, and not otherwise or elsewhere; or where, a place of payment being specified in the order, it undertakes the payment at some other place and not otherwise or elsewhere;

(d)where it undertakes the payment at a time other than that at which under the order or would be legally due.

  1. Effect of material alteration.—Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;

Alteration by indorsee.—And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.

The provisions of this section are subject to those of sections 20, 49, 86 and 125.

  1. Acceptor or indorser bound notwithstanding previous alteration.—An acceptor or indorser of a negotiable instrument is bound by his acceptance or indorsement notwithstanding any previous alteration of the instrument.
  1. Payment of instrument on which alteration is not apparent.—(1)Where a promissory note, bill of exchange or cheque has been materially altered but does not appear to have been so altered, or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing which has been obliterated, payment thereof by a person or banker liable to pay and paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such person or banker from all liability thereon; and such payment shall not be questioned by reason of the instrument having been altered, or the cheque crossed.

(2)Where the cheque is an electronic image of a truncated cheque, any difference in apparent tenor of such electronic image and the truncated cheque shall be a material alteration and it shall be the duty of the bank or the clearing house, as the case may be, to ensure the exactness of the apparent tenor of electronic image of the truncated cheque while truncating and transmitting the image.

(3)Any bank or a clearing house which receives a transmitted electronic image of a truncated cheque, shall verify from the party who transmitted the image to it, that the image so transmitted to it and received by it, is exactly the same.

  1. Extinguishment of rights of action on bill in acceptor’s hands.—If a bill of exchange which has been negotiated is, at or after maturity, held by the acceptor in his own right, all rights of action thereon are extinguished.

Devider

CHAPTER -8

OF NOTICE OF DISHONOUR

  1. Dishonour by non-acceptance.— A bill of exchange is said to be dishonoured by non-acceptance when the drawee, or one of several drawees not being partners, makes default in acceptance upon being duly required to accept the bill, or where presentment is excused and the bill is not accepted.

Where the drawee is incompetent to contract, or the acceptance is qualified the bill may be treated as dishonoured.

  1. Dishonour by non-payment.—A promissory note, bill of exchange or cheque is said to be dishonoured by non-payment when the maker of the note, acceptor of the bill or drawee of the cheque makes default in payment upon being duly required to pay the same.
  1. By and to whom notice should be given.—When a promissory note, bill of exchange or cheque is dishonoured by non-acceptance or non-payment, the holder thereof, or some party thereto who remains liable thereon, must give notice that the instrument has been so dishonoured to all other parties whom the holder seeks to make severally liable thereon, and to some one of several parties whom he seeks to make jointly liable thereon.

Nothing in this section renders it necessary to give notice to the maker of the dishonoured promissory note, or the drawee or acceptor of the dishonoured bill of exchange or cheque.

  1. Mode in which notice may be given.—Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.

If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.

  1. Party receiving must transmit notice of dishonour.—Any party receiving notice of dishonour must, in order to render any prior party liable to himself, give notice of dishonour to such party within a reasonable time, unless such party otherwise receives due notice as provided by section 93.
  1. Agent for presentment.—When the instrument is deposited with an agent for presentment, the agent is entitled to the same time to give notice to his principal as if he were the holder giving notice of dishonour, and the principal is entitled to a further like period to give notice of dishonour.
  1. When party to whom notice given is dead.—When the party to whom notice of dishonour is despatched is dead, but the party despatching the notice is ignorant of his death, the notice is sufficient.
  1. When notice of dishonour is unnecessary.—No notice of dishonour is necessary—

(a)when it is dispensed with by the party entitled thereto;

(b)in order to charge the drawer, when he has countermanded payment;

(c)when the party charged could not suffer damage for want of notice;

(d)when the party entitled to notice cannot after due search be found; or the party bound to give notice is, for any other reason, unable without any fault of his own to give it;

(e)to charge the drawers, when the acceptor is also a drawer;

(f)in the case of a promissory note which is not negotiable;

(g)when the party entitled to notice, knowing the facts, promises unconditionally to pay the amount due on the instrument.

Devider

CHAPTER 9

OF NOTING AND PROTEST

  1. Noting.—When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonour to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each.

Such note must be made within a reasonable time after dishonour, and must specify the date of dishonour, the reason, if any, assigned for such dishonour, or, if the instrument has not been expressly dishonoured, the reason why the holder treats it as dishonoured, and the notary’s charges.

  1. Protest.—When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonour to be noted and certified by a notary public. Such certificate is called a protest.

Protest for better security.—When the acceptor of a bill of exchange has become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being refused may, with a reasonable time, cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security.

  1. Contents of protest.—A protest under section 100 must contain—

(a)either the instrument itself, or a literal transcript of the instrument and of everything written or printed thereupon;

(b)the name of the person for whom and against whom the instrument has been protested;

(c)a statement that payment or acceptance, or better security, as the case may be, has been demanded of such person by the notary public; the terms of his answer, if any, or a statement that he gave no answer, or that he could not be found;

(d)when the note or bill has been dishonoured, the place and time of dishonour, and, when better security has been refused, the place and time of refusal;

(e)the subscription of the notary public making the protest;

(f)in the event of an acceptance for honour or of a payment for honour, the name of the person by whom, of the person for whom, and the manner in which, such acceptance or payment was offered and effected.

A notary public may make the demand mentioned in clause (c) of this section either in person or by his clerk or, were authorized by agreement or usage, by registered letter.

  1. Notice of protest.—When a promissory note or bill of exchange is required by law to be protested, notice of such protest must be given instead of notice of dishonour, in the same manner and subject to the same conditions; but the notice may be given by the notary public who makes the protest.
  1. Protest for non-payment after dishonour by non-acceptance.—All bills of exchange drawn payable at some other place than the place mentioned as the residence of the drawee, and which are dishonoured by non-acceptance, may, without further presentment to the drawee, be protested for non-payment, in the place specified for payment, unless paid before or at maturity.
  1. Protest of foreign bills.—Foreign bills of exchange must be protested for dishonour when such protest is required by the law of the place where they are drawn.

104A. When noting equivalent to protest.—For the purposes of this Act, where a bill of note is required to be protested within a specified time or before some further proceeding is taken it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting.

Devider

CHAPTER 9

OF REASONABLE TIME

  1. Reasonable time.—In determining what is a reasonable time for presentment for acceptance or payment, for giving notice of dishonour and for noting, regard shall be had to the nature of the instrument and the usual course of dealing with respect to similar instruments; and, in calculating such time, public holidays shall be excluded.
  1. Reasonable time of giving notice of dishonour.—If the holder and the party to whom notice of dishonour is given carry on business or live (as the case may be) in different places, such notice is given within a reasonable time if it is despatched by the next post or on the day next after the day of dishonour.

If the said parties carry on business or live in the same place, such notice is given within a reasonable time if it is despatched in time to reach its destination on the day next after the day of dishonour.

  1. Reasonable time for transmitting such notice.—A party receiving notice of dishonour, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if he transmits it within the same time after its receipt as he would have had to give notice if he had been the holder.

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CHAPTER-11

OF ACCEPTANCE AND PAYMENT FOR HONOUR AND REFERENCE IN CASE OF NED

  1. Acceptance for honour.—When a bill of exchange has been noted or protested for non-acceptance or for better security, any person not being a party already liable thereon may, with the consent of the holder, by writing on the bill, accept the same for the honour of any party thereto.
  1. How acceptance for honour must be made.—A person desiring to accept for honour must,by writing on the bill under his hand, declare that he accepts under protest the protested bill for the honour of the drawer or of a particular indorser whom he names, or generally for honour
  1. Acceptance not specifying for whose honour it is made.—Where the acceptance does not express for whose honour it is made it shall be deemed to be made for the honour of the drawer.
  1. Liability of acceptor for honour.—An acceptor for honour binds himself to all parties subsequent to the party for whose honour he accepts to pay the amount of the bill if the drawee do not; and such party and all prior parties are liable in their respective capacities to compensate the acceptor for honour for all loss or damage sustained by him in consequence of such acceptance.

But an acceptor for honour is not liable to the holder of the bill unless it is presented, or (in case the address given by such acceptor on the bill is a place other than the place where the bill is made payable) forwarded for presentment, not later than the day next after the day of its maturity.

  1. When acceptor for honour may be charged.—An acceptor for honour cannot be charged unless the bill has at its maturity been presented to the drawee for payment, and has been dishonoured by him, and noted or protested for such dishonour.
  1. Payment for honour.—When a bill of exchange has been noted or protested for non-payment, any person may pay the same for the honour of any party liable to pay the same: provided that the person so paying

or his agent in that behalf has previously declared before a notary public the party for whose honour he pays, and that such declaration has been recorded by such notary public.

  1. Right of payer for honour.—Any person so paying is entitled to all the rights in respect of the bill, of the holder at the time of such payment, and may recover from the party for whose honour he pays all sums so paid, with interest thereon and with all expenses properly incurred in making such payment.
  1. Drawee in case of need.—Where a drawee in case of need is named in a bill of exchange, or in any indorsement thereon, the bill is not dishonoured until it has been dishonoured by such drawee.
  1. Acceptance and payment without protest.—A drawee in case of need may accept and pay the bill of exchange without previous protest.

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CHAPTER 12

OF COMPENSATION

  1. Rules as to compensation.— The compensation payable in case of dishonour of a promissory note, bill of exchange or cheque, by any party liable to the holder or any indorsee, shall be determined by the following rules:—

(a)the holder is entitled to the amount due upon the instrument together with the expenses properly incurred in presenting, noting and protesting it;

(b)when the person charged resides at a place different from that at which the instrument was payable, the holder is entitled to receive such sum at the current rate of exchange between the two places;

(c)an indorser who, being liable, has paid the amount due on the same is entitled to the amount so paid with interest at

eighteen per centum per annum from the date of payment until tender or realisation thereof, together with all expenses caused by the dishonour and payment;

(d)when the person charged and such indorser reside at different places, the indorser is entitled to receive such sum at the current rate of exchange between the two places;

(e)the party entitled to compensation may draw a bill upon the party liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him. Such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured, the party dishonouring the same is liable to make compensation thereof in the same manner as in the case of the original bill.

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CHAPTER- 13

SPECIAL RULES OF EVIDENCE

  1. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:—

(a)of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b)as to date —that every negotiable instrument bearing a date was made or drawn on such date;

(c)as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d)as to time of transfer —that every transfer of a negotiable instrument was made before its maturity;

(e)as to order of indorsements —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f)as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped;

(g)that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

  1. Presumption on proof of protest.—In a suit upon an instrument which has been dishonoured, the Court shall, on proof of the protest, presume the fact of dishonour, unless and until such fact is disproved.
  1. Estoppel against denying original validity of instrument.—No maker of a promissory note, and no drawer of a bill of exchange or cheque, and no acceptor of a bill of exchange for the honour of the drawer shall, in a suit thereon by a holder in due course, be permitted to deny the validity of the instrument as originally made or drawn.
  1. Estoppel against denying capacity of payee to indorse.—

No maker of a promissory note and no acceptor of a bill of exchange

payable to order shall, in a suit thereon by a holder in due course, be permitted to deny the payee’s capacity, at the rate of the note or bill, to indorse the same.

  1. Estoppel against denying signature or capacity of prior party.—No indorser of a negotiable instrument shall, in a suit thereon by a subsequent holder, be permitted to deny the signature or capacity to contract of any prior party to the instrument.

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CHAPTER -14

OF CROSSED CHEQUES

  1. Cheque crossed generally.—Where a cheque bears across its face an addition of the words “and company” or any abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words “not negotiable”, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally.
  1. Cheque crossed specially.—Where a cheque bears across its face an addition of the name of a banker, either with or without the words “not negotiable”, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially, and to be crossed to that banker.
  1. Crossing after issue.—Where a cheque is uncrossed, the holder may cross it generally or specially.

Where a cheque is crossed generally, the holder may cross it specially.

Where a cheque is crossed generally or specially, the holder may add the words “not negotiable”.

Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker, his agent, for collection.

  1. Payment of cheque crossed generally.—Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker.

Payment of cheque crossed specially.—

Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or his agent for collection.

  1. Payment of cheque crossed specially more than once.—Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof.
  1. Payment in due course of crossed cheque.—Where the banker on whom a crossed cheque is drawn has paid the same in due course, the banker paying the cheque, and (in case such cheque has come to the hands of the payee) the drawer thereof, shall respectively be entitled to the same rights, and be placed in the same position in all respects, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner thereof.
  1. Payment of crossed cheque out of due course.—Any banker paying a cheque crossed generally otherwise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same is crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.
  1. Cheque bearing “not negotiable”.—A person taking a cheque crossed generally or specially, bearing in either case the words “not negotiable”, shall not have and shall not be capable of giving, a better title to the cheque than that which the person from whom he took it had.
  1. Non-liability of banker receiving payment of cheque.—A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment.

Explanation I.—A banker receives payment of a crossed cheque for a customer within the meaning of this section notwithstanding that he credits his customer’s account with the amount of the cheque before receiving payment thereof.

Explanation II.—It shall be the duty of the banker who receives payment based on an electronic image of a truncated cheque held with him, to verify the prima facie genuineness of the cheque to be truncated and any fraud, forgery or tampering apparent on the face of the instrument that can be verified with due diligence and ordinary care.

131A. Application of Chapter to drafts.—The provisions of this Chapter shall apply to any draft, as defined in section 85A, as if the draft were a cheque.

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CHAPTER- 15

OF BILLS IN SET

  1. Set of bills.—Bills of exchange may be drawn in parts, each part being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set; but the whole set constitutes only one bill, and is extinguished when one of the parts, if a separate bill, would be extinguished.

Exception —When a person accepts or indorses different parts of the bill in favour of different persons, he and the subsequent indorsers of each part are liable on such part as if it were a separate bill.

  1. Holder of first acquired part entitled to all.—As between holders in due course of different parts of the same set, he who first acquired title to his part is entitled to the other parts and the money represented by the bill.

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CHAPTER-16

OF INTERNATIONAL LAW

  1. Law governing liability of maker, acceptor or indorser of foreign instrument.—In the absence of a contract to the contrary, the liability of the maker of drawer of a foreign promissory note, bill of exchange or cheque is regulated in all essential matters by the law of the place where he made the instrument, and the respective liabilities of the acceptor and indorser by the law of the place where the instrument is made payable.

Illustration

A bill of exchange was drawn by A in California where the rate of interest is 25 per cent. and accepted by B, payable in Washington where the rate of interest is 6 per cent. The bill is indorsed in India, and is dishonoured. An action on the bill is brought against B in

India. He is liable to pay interest at the rate of 6 per cent. only; but if A is charged as drawer, A is liable to pay interest at the rate of 25 per cent.

  1. Law of place of payment governs dishonour.—Where a promissory note, bill of exchange or cheque is made payable in a different place from that in which it is made or indorsed, the law of the place where it is made payable determines what constitutes dishonour and what notice of dishonour is sufficient.

Illustration

A bill of exchange drawn and indorsed in India, but accepted payable in France, is dishonoured. The indorsee causes it to be protested for such dishonour, and gives notice thereof in accordance with the law of France though not in accordance with the rules herein contained in respect of bills which are not foreign. The notice is sufficient.

  1. Instrument made, etc., out of India, but in accordance with the law of India.—If a negotiable instrument is made, drawn accepted or indorsed outside India, but in accordance with the law of India, the circumstance that any agreement evidenced by such instrument is invalid according to the law of the country wherein it was entered into does not invalidate any subsequent acceptance or indorsement made thereon within India.
  2. Presumption as to foreign law.—The law of any foreign country regarding promissory notes, bills of exchange and cheques shall be presumed to be the same as that of India, unless and until the contrary is proved.

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DEFENCE MANAGEMENT IN CRIMINAL TRIAL

a. Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects.

b. Witnesses/documents/material objects be assigned specific nomenclature and numbers.

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CODE OF CRIMINAL PROCEDURE 1973   @  PROCEDURAL SAFE GUARDS

  • Mansukhlal Vithaldas Chauhan v. State of Gujarat, it has been held by this Court as under: “. Since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.” Sanction is void on the ground of non- application of mind and is not a legal and valid sanction.
  • X was a chargesheet witness although his statement under Section 161 CrPC was never recorded and thus, the accused persons had been naturally deprived of an opportunity to effectively cross-examine the witness and thereby they were very much prejudiced
  • in the case of Ranjit Singh v. State of Punjab,which case is relied upon in the case of Ajit Singh(supra) this Court observed as under :  “Before adverting to the facts to have been narrated by the accused as recorded in the two confessional statements, it deserves to be noticed that in case the recording officer of the confessional statement on administering the statutory warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would of course depend upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time.

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THE INDIAN EVIDENCE ACT @ PROPAGATION OF DEFENCE EVIDENCE – DEMOLITION OF POLICE EVIDENCE
  • Defence Witnesses to be given same weightage as prosecution witnesses. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.Munshi Prasad v. State of Bihar, I.C.D.S. Ltd. v. Beena Shabeer & Anr. and State of Uttar Pradesh v. Babu Ram
  • Delay in recording statements of accomplices and confessional statements of the accused persons-the case of State of Andhra Pradesh v. S.Swarnalatha & Ors., wherein even 26 days delay in recording statements of prosecution witnesses was not allowed by this Court , Jagjit Singh @ Jagga v. State of Punjab.
  • Suppression of material witness draws an adverse inference against the prosecution-Tulsiram Kanu v. The State, Ram Prasad & Ors. v. State of U.P. and State of U.P. v. Punni & Ors.
  • Failure of prosecution to establish a nexus between the accused persons and the crime
  • Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, wherein this(SC) Court had further stated with regard to the combined effect of Sections 133 and 114, Illustration (b) of the Indian Evidence Act, 1872 and held that corroboration must connect the accused persons with the crime.
  • Sarwan Singh v. State of Pubjab, wherein this Court has laid down the legal principle that the courts are naturally reluctant to act on such tainted evidence unless it is corroborated and that independent corroboration should support the main story disclosed by the approver apart from a finding that the approver is a reliable witness. The accomplice evidence should satisfy a double test, i.e. he is a reliable witness and that there is sufficient corroboration by other evidence to his statement. This test is special to the case of weak or tainted evidence like that of the approver. Ravinder Singh v. State of Haryana, Abdul Sattar v. U.T. Chandigarh, Narayan Chetanram Chaudhary v. State of Maharashtra, Sheshanna Bhumanna Yadav v. State of Maharashtra and Bhuboni Sahu v. R
  • Alternative stories put forth by the prosecution-Even the prosecution was not certain as to which of the three versions was true. It was submitted that therefore, in the presence of these major discrepancies in the prosecution story, and the non reliability of the confessional statements of the accused persons, they were entitled to acquittal.
  • Vijay Kumar Arora v. State(Govt. of NCT of Delhi) , wherein the Court held as under: “ In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicion do not take place of legal proof.In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies.”
  •  The evidence of the accomplices cannot be used to corroborate the confessional statements of the accused persons in the absence of independent evidence and the delay of more than one year in recording their statements causes us to disregard their evidence.
  • Aloke Nath Dutta & Ors. V. State of West Bengal, this Court held as under: “ A retracted confession of a co-accused cannot be relied upon for the purpose of finding corroboration for the retracted confession of an accused.

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INDIAN SUPREME COURT – A LONG STANDING EXPERIENCE WITH “AFTER DUE DELIBERATION OF PROCESS”

  • The Constitutional validity of death penalty was tested in Bachan Singh v. State of Punjab.
  • The Bachan Singh principle of the ‘rarest of rare cases’ came up for consideration and elaboration in Machhi Singh v. State of Punjab.

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1. NIRBHYA GANG RAPE CASE Death penalty awarded categorizing it  “rarest of rare cases”.

the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment

2. DEATH PENALTY COMMUTED ( 25.04.2013)Shankar Kisanrao Khade VS State of Maharashtra, the court prepared a balance sheet  pertaining to the capital punishment.Justice Madan B. Lokur (concurring) while elaborately analysing the question of imposing death penalty in specific facts and circumstances of that particular case, concerning rape and murder of a minor, discussed the sentencing policy of India, with special reference to execution of the sentences imposed by the Judiciary. OBSERVED-It does prima facie appear that two important organs of the State that is the Judiciary and the Executive are treating the life of convicts convicted of an offence punishable with death with different standards. While the standard applied by the Judiciary is that of the rarest of rare principle (however subjective or judge centric it may be in its application) the standard applied by the Executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the Executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India.

3.Travesty Of Justice @Yakub Abdul Razak Memon Versus State of Maharashtra and Anr.(30.07.2017) -principle stated in Shatrughan Chauhan (supra), the petitioner is entitled to claim commutation of death sentence to life imprisonment on the basis of supervening circumstances. The question that emerges for consideration is whether on the ground of not granting of 14 days’ time from the date of receipt of communication of rejection of the mercy petition, should the warrant which is going to be executed at 7.00 a.m. on 30.07.2015 be stayed. Mr. Mukul Rohatgi, learned Attorney General for India, appearing for the respondent, would submit that the mercy petition is considered by the President of India in exercise of his power under Article 72 of the Constitution of India and when he has rejected the mercy petition after due consideration of all the relevant facts on earlier occasion, if such kind of repetitive mercy petitions are allowed to be submitted and further challenge to the rejection of the same is permitted, the danger of the concept of ad infinitum would enter into the field. HELD-In our considered opinion, to grant him further time to challenge the rejection of the second mercy petition for which we have to stay the execution of the death warrant dated 30.04.2015 would be nothing but travesty of justice.

  • CHRONOLOGY -The two-Judge Bench of this Court which had decided the appeal on 21.03.2013. The review petition was dismissed by circulation on 30.07.2013 by the two-Judge Bench of this Court which had decided the appeal. A mercy petition(first) was submitted by Suleman, brother of the petitioner, on 06.08.2013 which stood rejected on 11.04.2014 by the President of India and that was communicated to the petitioner on 26.05.2014. The Constitution Bench in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors. dealing with the  rule(reviewing) opined that in death cases, the matter should be heard by a three-Judge Bench and the review petition should be heard in the open court by giving maximum time limit of 30 minutes to the convict. Accordingly, his review petition was heard by a three-Judge Bench in the open Court. After rejection of the said review petition on 09.04.2015, he filed a curative petition on 22.05.2015 which also got dismissed on 21.07.2015.After rejection of the curative petition on the 21.07.2015, the petitioner submitted a mercy petition to the Governor, Maharashtra which was received on22.07.2015. He also submitted another mercy petition to the President of India which was received by the President of India at 2.00 p.m. on 29.07.2015.W.P. (Crl.) No. 129 of 2015 which has been dismissed on 29.07.2015 at 4.15 PM. Both these mercy petitions have been rejected( therefore the accused was asking for another 14 days counting from 29.07.2015). The death warrant was issued on 30.04.2015 which was admittedly received by the petitioner on 13.07.2015 and the date of its execution is 30.07.2015 at 7.00 AM. WRIT PETITION (CRL.) NO.135 OF 2015 was rejected on  about 3.15 a.m. on 30.07.2015, Menon executed at 7.00 AM.
  • PRINCIPAL OF CURATIVE PETITION EXPLAINED-The creation of curative jurisdiction by this Court is based on the Constitution Bench judgment in Rupa Ashok  Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Prior to the said judgment, the decisions in certain matters used to be challenged under Article 32 of the Constitution,the Bench laid down the ex debito justitiae principle. We are required to understand what is meant by the words “judgment complained of”. According to Rupa Ashok Hurra (supra) principle, a second review is not permissible. However, a curative petition is evolved in exercise of power under Article 142 of the Constitution of India to avoid miscarriage of justice and to see that in the highest Court, there is no violation of principle of natural justice, and bias does not creep in which is also fundamentally a facet of natural justice in a different way. We reiterate at the cost of repetition, whether other grounds can be taken or not, need not be adverted to by us. The principle of review as is known is to re-look or re-examine the principal judgment. It is not a virgin ground as has been held by Krishna Iyer, J. in Sow Chandra Kante and Another vs. Sheikh Habib (1975) 1 SCC 674. The said principle has been reiterated in many an authority. Thus, it is luculent that while this Court exercises the jurisdiction in respect of a curative petition, it is actually the principal judgment/main judgment, which is under assail.LINK

4. Mohammad Ajmal Mohammad Amir Kasab v. State of Maharashtra (29.08.2012)[terrorist attack]

“If the case is of death sentence, this Court can exercise its power to examine material on record first hand and come to its own conclusion on facts and law, unbound by the findings of the Trial Court and the High Court” Adambhai Sulemanbhai Ajmeri & Ors. … Versus State of Gujarat

  • Putting the matter once again quite simply, in this country death as a penalty has been held to be Constitutionally valid, though it is indeed to be awarded in the “rarest of rare cases when the alternative option (of life sentence) is unquestionably foreclosed”. Now, as long as the death penalty remains on the statute book as punishment for certain offences, including “waging war” and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty. That being the position we fail to see what case would attract the death penalty, if not the case of the appellant(PARA 585)
  • Against all this, the only mitigating factor is the appellant’s young age, but that is completely offset by the absence of any remorse on his part, and the resultant finding that in his case there is no possibility of any reformation or rehabilitation.(para-582)
  • If we examine the present case in light of the Machhi Singh decision, it would not only satisfy all the conditions laid down in that decision for imposition of death sentence but also present several other features that could not have been conceived of by the Court in Machhi Singh. We can even say that every single reason that this Court might have assigned for confirming a death sentence in the past is to be found in this case in a more magnified way(para-569)
  • The kind of cases in which protection to life may be withdrawn and there may be the demand for death penalty were then enumerated in the following paragraphs: “32. … It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

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1. Manner of commission of murder – When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder . When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime (a) When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime – When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder – When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons(para 567)

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MERCY PETITION TO THE PRESIDENT OF INDIA  (Rejected- Commuted – Pending)

Mercy petition for Yakub Memon

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DEATH PENALTY INFORMATION CENTER USA

AMERICAN EXPERIMENT ON DEATH PENALTY

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